
    New York and Boston Despatch Express Company, Suing on Its Own Behalf and in Behalf of All Other Persons Similarly Situated Who May Come in and Contribute to the Expenses of This Action, Respondent, v. Howard Carroll and Harriet M. Speaker, as Executors, etc., of John H. Starin, Deceased, Appellants.
    First Department,
    December 3, 1915.
    Limitation of action — insurance by carrier “for account of whom it may concern” — action to recover moneys paid to insured — Six-Year Statute of Limitations.
    An action by the plaintiff in its own behalf and in behalf of all others similarly situated, against the executors of the owner of a vessel to recover moneys collected and retained by the testator under a fire insurance policy insuring goods “ for account of whom it may concern, loss if any payable to ” the defendant’s testator, is based upon an implied contract, and the Six-Year Statute of Limitations is a defense. Said statute began to run on the date of the receipt of the insurance money by the testator and not on the date of the plaintiff’s discovery of that fact.
    McLaughlin and Laughlin, JJ., dissented.
    Appeal by the defendants, Howard Carroll and another, as executors, ‘from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of July, 1915,'deny-ing their motion for a judgment on the pleadings after an answer had been interposed to the amended complaint.
    
      
      Avery F. Cushman, for the appellants.
    
      Oscar R. Houston, for the respondent.
   Ingraham, P. J.:

The complaint alleges a cause of action based upon the receipt by defendants’ testator of certain insurance moneys upon a policy whereby the insurance company insured the defendants’ testator as “freighter, forwarder, bailee, common carrier, or for account of whom it may concern; loss, if any, payable to” John H. Starin’ “or order to the amount of $20,000 on goods, wares and merchandise, including live stock and baggage while on hoard ” the vessel known as the John H. Starin (subsequently transferred to the Glen Island), owned by the said John H. Starin, ‘ against all loss, damage, detriment or hurt by fire * * *. It is the intent of these insurers to fully indemnify the assured for all general average charges and salvage expenses, and loss, damage, detriment or hurt to said property * * *." The complaint alleges further that the- steamer so insured was destroyed by fire on December 17, 1904, and on March 7, 1905, the defendants’ testator collected from the insurance company the amount of the policy, to wit, the sum of $19,500, for the account of the owner of said cargo so burned as aforesaid; that the testator died in the year 1909, and the defendants duly qualified as executors of his estate.

It seems to be conceded that this complaint set up a cause of action in favor of the plaintiff, under the decision of the Court of Appeals in Symmers v. Carroll (207 N. Y. 632). Among other defenses, the defendants set up the six years’ Statute of Limitations, alleging that this action was commenced March 1,1915, and not within six years after the cause of action stated in the complaint had accrued to the plaintiff and each and every one of its assignors. To that defense the plaintiff served a reply, admitting that the action was commenced March 1,1915, and alleging that the plaintiff had no knowledge or information with respect to the insurance which defendants’ testator had effected on the cargo of the steamer Glen Island,, or of the receipt by said defendants’ testator of any sums upon insurance policies or otherwise, until the attention of one- of plaintiff’s officers was called to a notice which appeared in the public prints on March 20,1912, of the decision in the case of Symmers v. Carroll by the Appellate Division of the Supreme Court. Upon the pleadings the defendants made a motion for judgment, which was denied, • and from that order the defendants appeal. Thus the only question upon this appeal is the sufficiency of this plea of the statute.

It is alleged in the complaint that on March 1, 1905, Starin collected from the insurance company the amount of its policy “ for account of the owners of said cargo so burned as aforesaid.” The cause of action, therefore, arose in favor of the plaintiff on the 1th of March, 1905. Starin died in the year" 1909. While a cause of action existed against him to enforce his obligation to pay the portion of the insurance money to the plaintiff, by section 403 of the Code of Civil Procedure “the term of eighteen months after the death, within the State, of a person against whom a cause of action exists * * * is not a part of the time limited for the commencement of an action against his executor or administrator. ” Adding eighteen months to the six years, would make the statute a bar on September 1, 1912, and this action was not commenced until March 1,1915.

This question seems to have been presented in Roberts v. Ely (113 N. Y. 128). In that case a company whose financial agent was defendant’s testator (sic) was in possession of a quantity of teas which were the property of the plaintiff and his partner, and it was agreed that the company of defendant’s testator should hold the teas in storage and insure the same for their benefit; that the teas so insured were destroyed by fire, and the insurance money for the whole collected and received by defendant’s testator in November, 1812, who wrongfully appropriated the whole thereof and paid no portion to the plaintiff or his partner, the plaintiff’s assignor; and the relief demanded was that the defendant account for and pay over to the plaintiff all moneys received by reason of the destruction of the teas belonging to the plaintiff and the plaintiff’s assignor. The Statute of Limitations was pleaded, and the Court of Appeals held that the bar of the statute was a conclusive answer to the claim of the plaintiff upon his own theory of the cause of action. That theory is stated by the Court of Appeals as follows: “The plaintiff insists that Geiger & Co., whose rights he represents, became the equitable owners of a specific portion of the insurance money collected, and which came to the hands of David J. Ely, the defendant’s intestate. ” Ely collected from the insurance company $43,535, and the trial judge found that in this sum was included $5,841.25 paid by the insurers on account of the destruction of the teas of Geiger & Co. “Upon all the circumstances, the plaintiff insists that when the insurance money was paid to Ely he took it impressed with a trust in favor of Geiger & Co., to the extent of their interest in the teas destroyed by the fire, as represented in the fund received, and was equitably bound to account to Geiger & Co. for their equitable interest.”

Turning to Symmers v. Carroll (207 N. Y. 632), under which it was held that a cause of action was stated, it was there said: “If Starin held the insurance moneys as trustee, then the owners of the cargo here represented by the plaintiff had the right to call him to account, and it was his duty to state his account and prove the items of his loss. * * * It was his further duty, after paying himself, to divide what remained of the insurance money among the owners of the cargo according to their respective rights and interest.” It seems to me that the cause of action thus alleged is similar to that alleged in Roberts v. Ely, and that the rule there laid down must apply to this case. In stating the rule applicable, the court; in Roberts v. Ely, said: “ Assuming that the plaintiff is right in his construction of the facts, the case falls within the familiar doctrine that money in the hands of one perspn, to which another is equitably entitled, may be recovered in a common law action by the equitable owner upon an implied promise arising from the duty of the person in possession to account for and pay over the same to the person beneficially entitled. The action for money had and received to the use of another is the form in which courts of common law enforce the equitable obligation. * * * The right on the one side, and the correlative duty on the other, create the necessary privity and justify the implication of a promise by the defendant to do that which justice and equity require. * * * Nor is this form of action excluded, because in a general sense there is a relation of trust between the parties arising out of the transaction. There are many cases of trust cognizable only in a court of equity. * * * But the fact that money in the hands of one person is impressed with a trust in favor of another, or that the relation between them has a trust character, does not ipso facto exclude the jurisdiction of courts of law. The general rule that trusts are cognizable in equity and are enforceable only in an equitable action is subject to many exceptions, as, for instance, cases of bailments and that larger class of cases where the action for money had and received for another’s use is maintained ex cequo et bono.’ * * * The present case falls within the exception. Upon the plaintiff’s theory of the facts, Geiger & Co. were the equitable owners of a pro rata part of the insurance money received by Ely. That firm and Ely were alone interested in the question, as it is conceded that Ely was entitled to all the money received, subject only to the claim of Geiger & Co. The only accounting required was such as was necessary to ascertain the extent of .the interest of Geiger & Co., and that depended upon simple facts as readily ascertainable in a legal as in an equitable action. The case, therefore, presented a cause of action upon a liability implied by law, and it was subject to the limitation of six years prescribed by section 91 of the Code of Procedure, in force when the cause of action arose. * * * Assuming that an equitable action could be brought to enforce' the liability claimed, it would still be subject to the limitation of six years. * * * The plaintiff cannot avoid the application of the statute by treating the actual appropriation of the money by Ely in 1874 as the cause of action. The right of Geiger & Co. to recover the money was perfect from the time of its actual receipt by Ely in 1871.”

The learned trial judge in his opinion calls attention to the fact that that case arose under the old statute, section 91 of the Code of Procedure, and that that section has been considerably changed. That section is now section 382 of the Code of Civil Procedure, and I cannot find that there has been any change in this provision which at all affects this question. Subdivision 1 of that section, read with section 380, provides now, as in sections 74 and 89 and subdivision 1 of section 91 of the former Code of Procedure, that an action must be commenced within. six years after the cause of action has accrued “upon a contract obligation or liability, express or implied; except a judgment or sealed instrument.”

I cannot see that that case has been subsequently qualified or questioned. It was applied in Adams v. Olin (140 N. Y. 150); in Middleton v. Twombly (125 id. 520); in Strough v. Board of Supervisors (119 id. 212), and in Yates v. Wing (42 App. Div. 356). Thus, it seems to me settled that this action for money had and received is based upon an implied contract; that the cause of action, whether sought to be enforced in a legal or equitable action, is controlled by the statute which provides for limitations in actions upon contract, express or implied; and, therefore, the six years’ statute applied.

The learned court at Special Term seemed to consider that that case had been qualified by Lightfoot v. Davis (198 N. Y. 269), but that case presented an entirely different question. As Chief Judge Cullen said in his opinion, it was a singular case, and the question that was discussed seemed to be whether a thief could obtain a valid title to the stolen property by concealing the fact of the robbery until six years after it had taken place; and the court held he could not. In summing up. the decision, the court said: “In cases like the one before us there are two distinct elements of fraud — 1st, the original larceny; 2nd, the subsequent .concealment of the stolen property and of its sale, and the receipt of its proceeds. Assuming (but only for the argument) that under the first no bill in equity could be maintained, I think the second affords a good ground for the interposition of equity, and, as already stated, though the ' plaintiff failed to identify in the estate of the deceased the proceeds of his bonds, he was still entitled to what would be a personal judgment were the original wrongdoer still living. * * * Cases-of the character of the one before us are to be distinguished from that large class, often those of principal and agent, in which it is held that an accounting in equity will not lie, and that the accounting must be had in an action at law. In such cases there exists merely a debt from one party to the other, while in those of the former class, the property or fund itself belonging to the claimant, he is entitled to follow the proceeds as long as he may he able to identify them, or failing that, to recover not only the amount of the fund, hut also any profits acquired by its wrongful appropriation.”

My view, therefore, is that the six years’ Statute of Limitations applied, and that the order should be reversed, with ten dollars costs and disbursements, and the motion for judgment on the pleadings dismissing the complaint granted, with ten dollars costs.

Scott and Dowling, JJ., concurred; McLaughlin and Laughlin, JJ., dissented on opinion of Lehman, J.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  