
    Amelia M. Robinson, App’lt, v. The City of Brooklyn, Resp’t.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed June 27, 1887.)
    
    1. Tax certificates—Action for redemption money—When barred— Code Crv. Pro., § 382, sued. 1.
    The plaintiff being the owner of certain land which had been sold for taxes, bought the certificates of the tax sale, and having mislaid said certificates, paid the money to redeem under protest. The certificates having been found afterward, she applied to have them redeemed, and learned, that the redemption money had been paid to a third party, who claimed that he owned these certificates, but had lost them. More than six years had elapsed betwen the payment of the money by the plaintiff and the bringing of this action. Held, that it was barred by the statute of limitation under Code Civ. Pro., § 382, subd. 1.
    2. Same—City not a trustee.
    The city did not hold the money as a trustee so as-to prevent the statute of limitations from running.
    3. Same—When statute begins to run.
    A person who holds certificates is barred six years from the .date he has knowledge that the redemption has taken place. Plaintiff had that knowledge when she paid the money.
    4. Practice—Code Crv. Pro., § 405—When applicable.
    There was no finding or proof in the case that any proceeding was ever taken by mandamus, and, therefore, Code. Civ. Pro., § 405, had no application.
    
      Plaintiff’s premises were sold for taxes on February 19, 1861, to D. H. Feeks, who received from the collector of taxes three certificates, reciting that fact, and providing that in case of redemption, “all sums paid shall be repaid to said purchaser or his assigns, provided this certificate shall be surrendered to the collector of taxes and assessments.” In 1862 or 1863 plaintiff purchased these certificates from Feeks, and received them with an assignment in blank from him, dated 186—.
    In 1874 plaintiff was effecting a loan on these premises, and this sale was returned as an incumbrance.
    The certificates had been mislaid, and plaintiff was compelled to pay $1,158.43 to the registrar of arrears on August 14, 1874, which she did, under protest. On October 13, 1876, A. S. Wheeler presented to the registrar of arrears an assignment from Feeks to himself “of all my right, title and interest in the annexed certificate,” and then giving the numbers of certificates in question. These certificates were never annexed to the assignment, and there is no suggestion that Wheeler ever had them.
    On July 19, 1876, Wheeler gave a bond to the city of Brooklyn in $10,000, reciting:
    
      First. That Wheeler was the owner of certain tax certificates, which have been or were expected to be paid to the city by the owners.
    
      Second. That certain of these certificates standing in the name of, and belonging to Wheeler, had been lost, which he claimed to be paid by the city, and agreeing to indemnify the city from any loss by reason of paying him the amount collected on such certificates standing in his name. Annexed to this was a list of thirty certificates.
    Plaintiff found these certificates in 1880. On January 5, 1882, she served a formal notice of assignment on the city, and on January 6, 1882, demanded the money and tendered the certificates, but was refused payment. Plaintiff at once applied for a mandamus to compel the registrar to pay her this money. This was granted by the special term, but reversed by the court of appeals November 24, 1885, on the ground that the registrar held the redemption moneys in trust for the various certificate holders, and having actually paid out this money, the remedy was by suit against the city. Plaintiff began this suit December 18, 1885.
    
      G. B. & A. H. Ely, for app’lt; George W. Wingate, of .counsel, for def’t; Almet F. Jenlcs, for resp’t.
   Clement, Ch. J.

We are of opinion that the claim of the plaintiff is barred by the Statute of Limitations, and that, therefore, it is unnecessary to determine the other questions in the case. It is an undisputed fact that the plaintiff redeemed the lands from the sales for assessments on the 14th day of August, 1874, and that this action was commenced by service of summons and complaint on December 19, 1885.

The liability of the defendant to return the money when the sales were redeemed arises on the contract contained in the certificates, and afi action upon a contract obligation, express or implied, is barred, after six years, by section 382 of the Code, subdivision 1, except where a demand is necessary, and in such cases, section 410 applies.

The money in this case was received by the city for the plaintiff, if we assume that she was, at the time of the redemption, the owner of the certificates (People ex rel. Robinson v. O’Keefe, 100 N. Y., 572), and an action at law, after a demand and refusal to pay, would lie against the city.

While the city may have held the money constructively as a trustee, it was not such a trust as would prevent the Statute of Limitations running. Kane v. Bloodgood, 7 J. Ch. R., 90, 110; Appeal of Yorks, 3 E. R., 387.

Subdivision 1 of section 410 of the Code provides “that where a right grows out of the receipt of the detention of money or property by an agent, trustee or attorney, or other person acting in a fiduciary capacity, the time must be computed from the time when the person having a right to make the demand has actual knowledge of the facts upon which that right depends.”

In this case, the plaintiff has actual knowledge of the facts upon which her right depended on August 14, 1874, when she redeemed her property.

The liability of the city to plaintiff did not arise because of the payment to Mr. Wheeler, but on the contract contained in the certificate, and if the defendant paid Mr. Wheeler wrongfully, such act gave plaintiff no cause of action.

It is, therefore, immaterial when plaintiff learned of the fact that the city had paid Mr. Wheeler.

The right of the plaintiff grows out of the receipt of money by a collecting agent and the time must be computed from August 14, 1874, when the plaintiff had actual knowledge of the facts, upon which that right depended.

It is claimed by the counsel for the appellant that she (plaintiff) could not demand payment of the money until she had found the lost certificates, which was in the year 1880 and within six years of the date of the commencement of this action.

We think the party cannot have an extension of the time limited from the fact of the loss of the contract on which the claim arises.

In this case, if the plaintiff had brought her action within six years from the date she paid the money to the city, it might be (it could be fairly so claimed by the counsel for the city) that proof could have been obtained showing that Mr. Wheeler was the owner of the certificates and not the plaintiff.

It has been decided in the court of appeals that a party has a cause of action on certificates, even though they cannot be produced. Ayers v. The City of Brooklyn, 87 N. Y., 639.

It would not seem just that a person who holds certificates, should be barred six years from the date of redemption, but six years from the date the person has knowledge that the redemption has taken place. And this is the rule laid down by us in this case. See also Lyle Executrix v. Murray (4 Sand., 590); Bronson v. Munson (29 Hun, 54).

The city was not bound to notify plaintiff of the redemption, as no notice of the assignment had been filed.

There is no finding or proof in the case that any proceeding was ever taken by mandamus, and, therefore, section 405 of the Code has no application.

Judgment affirmed, with costs.

Osborne, J., concurs.  