
    Compton v. Heissenbuttel.
    (New York Common Pleas
    General Term,
    February, 1893.)
    Defendants chartered plaintiffs boat and agreed to pay the wharfage, at the place of destination, to the owner or lessee of the wharf. Defendants having made default in the payment of the wharfage when due, March, 1883, plaintiff paid it, and in August, 1888, brought suit to recover the amount, with interest. Held, that the Statute of Limitations was a defense.
    Appeal from judgment of a General Term of the City Court affirming judgment on a verdict.
    Action for damages from breach of an agreement by the defendants to pay for wharfage of plaintiff’s boat chartered by defendants. The facts sufficiently appear in the opinion.
    
      Jrnnes L. Bishop, for defendants (appellants).
    
      Hyland & ZdbrisT&ie, for plaintiff (respondent).
   Pbyob, J.

When the case was before ns on a former appeal, we held that the undertaking of the defendants was to pay the plaintiff the amount of the wharfage. It appears by the record that the proof varied on the second trial, and that the contract of the defendants was to pay the wharfage at the place of destination to the owner or lessee of the wharfP In either event, however, the period of limitation is identical, namely, six years “after the cause of action has accrued.” Code, §§ 380, 382. The defendants plead the statute in bar; and the precise point for adjudication is,' when did the cause of action accrue ?

The rule is that in the case of torts quasi ex contractu, and in actions for breach of contract, the statute begins to run at the date of the tort or the breach, and not when the damage ensues. 13 Am. & Eng. Ency. of Law, 722; Northrop v. Hill, 57 N. Y. 351; M'Kerras v. Gardner, 3 Johns. 137; Bogardus v. Young, 64 Hun, 398 ; Hogan v. Wolf, 26 Abb. N. C.1.

The cause of action alleged in the complaint is the breach by the defendants of an agreement “ to pay the owner or lessee of the wharf at the place of consignment,” other averments being merely a statement of the damage consequent upon the imputed wrong.

The respondent argues, that either the engagement of the defendants was a contract of indemnity — in which case the right of action would emerge only on the occurrence of the loss indemnified against; or else that their liability was upon an implied agreement to reimburse plaintiff for money paid to their use—in which case the cause of action would arise only on the payment of the money by the plaintiff. But, neither proposition is tenable.

In undertaking to pay the wharfage, the defendants agreed thus to liquidate a part of their indebtedness for the hire of the boat; and in paying it, as between themselves and the plaintiff, they would have merely discharged their own proper obligation. The essential property of a contract of indemnity is an engagement to protect another against loss or liability to a third person; and this quality is not predicable of an undertaking for one’s own act or debt, although the accomplishment of the act or payment of the debt would relieve the contractee from Ms liability to another. Hence, m the present case, as appears by the nature of the contract, as well as from the pleadings and proofs, the cause of action is the breach of the defendants’ obligation to pay their debt, and not a failure to pay a debt of the plaintiff.

Unquestionably, between plaintiff and defendants the relation of surety and principal subsists; so that upon payment of the wharfage by the former, he might have maintained agamst the latter an action on an implied assumpsit for money paid to their use. But, the complaint proceeds neither upon a contract of indemnity nor an implied contract to reimburse plaintiff, but upon the breach of an express agreement to pay the wharfage ; and upon this theory only was the case conducted to judgment. The defendants undertook to pay the wharfage — ten dollars in amount — upon their default the plamtiff paid it; and in an action on an implied assumpsit he could recover only the ten dollars with interest. In fact, however, he has recovered $205.72 — which sum embraces not only the ten dollars and interest, but consequential and collateral damages from the breach of defendants’ agreement.

The cause of action sued on, to wit: failure to pay the wharfage, accrued upon the default of the defendants to pay when due, namely March, 1882. The action was commenced August 8, 1888. The case is not one in which a demand was requisite to start the statute. Code, § 410; Bogardus v. Young, 64 Hun, 398.

Our conclusion is that the Statute of Limitations constituted a valid defense to the action.

Judgment reversed and new trial ordered, costs to abide event.

Bookstaveb and Bischoff, JJ., concur.

Judgment reversed, new trial ordered.  