Opinion
December 20, 1961
This is an appeal from a verdict of the jury which resulted in a judgment in favor of the plaintiff for money loaned. The complaint stated that the plaintiff loaned to the defendant various sums of money, all by check as follows: March 14, 1952 for $1,000; March 28, 1952 for $1,000; April 4, 1952 for $227; April 11, 1952 for $1,000; August 5, 1952 for $600; August 27, 1952 for $300; December 4, 1952 for $162.40; October 2, 1953 for $1,000 and June 10, 1954 for $400. The complaint further alleged that the loans were never repaid although the plaintiff demanded payment in September, 1954. The answer, among other defenses, alleged that some of the loans had been made more than six years and were accordingly outlawed by the Statute of Limitations. The plaintiff concedes that these were loans of money evidenced by the checks. The plaintiff, however, contends that the statute does not begin to run until the time of demand for repayment, in this case, September, 1954. The applicable part of section 15 of the Civil Practice Act provides: "Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time within which the action must be commenced must be computed from the time when the right to make the demand is complete". In this case, those loans more than six years prior to the commencement of the action are barred since the right to make the demand accrued on the days the loans were made (Civ. Prac. Act, § 15). The trial court should have dismissed the complaint as to those loans at the end of the case and its denial of the motion for such relief is hereby reversed and the complaint dismissed as to the five loans made before August 19, 1952. However, this leaves a remainder of four loans. The jury obviously did not find that all of the transactions represented loans because their gross verdict was for a sum less than all of the alleged loans. There was no finding as to each transaction and so this court cannot determine the final judgment upon this appeal. The plaintiff further contends that the defendant having taken no exception to the charge of the court, that the law of the case was as charged, which stated that if the plaintiff demanded payment in September, 1954, "then you have a right and you could bring in a verdict for her even though that actually was more than six years. The time starts to run from the time the demand is made." The record shows that at the end of the plaintiff's case, the defendant moved to dismiss the complaint as to the various checks which were more than six years duration as being barred by the Statute of Limitations and which motions were denied and at the completion of the case, the motions were renewed and again denied. The defendant moved for judgment notwithstanding the verdict of the jury, which was denied. Under such circumstances, the failure to object to the charge of the court is not fatal. In Elenkrieg v. Siebrecht ( 238 N.Y. 254) the trial court erroneously charged the jury on a point of law. The charge was to the effect that the defendant, a stockholder in a closed family corporation, could be held personally liable for the injuries plaintiff sustained on property leased by the corporation if the jury found that the corporation was merely a "cover" for the defendant. There was no exception taken, but the defendant, at the close of the plaintiff's case and at the end of all the proof, made a motion to dismiss. A majority of the Appellate Division, apparently on the theory that the charge was the law of the case, affirmed the judgment against the defendant. The dissenting Justices pointed out that since the defendant stockholder moved to dismiss at the close of plaintiff's case and again at the close of his case, the question of his liability was squarely presented, and since it was conclusively shown that the corporation was the owner of the premises, the judgment should have been reversed. The Court of Appeals agreed with the Appellate Division dissent and stated at page 263: "It was not necessary for the defendant's counsel to except to the judge's charge in order to preserve the force and effect of his exception taken to the denial of his motion made at the end of the case. That was the time and place for the judge to have made the ruling which the law says he should have made. Having excepted to the ruling, the defendant lost none of his rights because the judge subsequently expressed the same views more at length in his charge to the jury. One exception upon the same ruling was as good as two." The Elenkrieg case is a precedent for the present factual situation where the defendant definitely placed the Statute of Limitations in issue before the trial court by his motions to dismiss and which were denied and exceptions taken. The court should have granted the motions but failed to do so. The fact that the court subsequently reaffirmed its error in its charge to the jury could hardly deprive the defendant of his rights which he had previously secured. As the court stated in Elenkrieg, "One exception upon the same ruling was as good as two." (See, also, Zaulich v. Thompkins Sq. Co., 10 A.D.2d 492-496; Greenberg v. Schlanger, 229 N.Y. 120; Rosenbaum v. Schatia, 272 N.Y. 67.) The Statute of Limitations being applicable and the defendant having reserved his rights by timely motions, the verdict of the jury must be set aside. The judgment is reversed and complaint dismissed as to the following loans: March 14, 1952 $1,000; March 28, 1952 $1,000; April 4, 1952 $227; April 11, 1952 $1,000 and August 5, 1952 $600 and the judgment is reversed and a new trial granted as to the following loans: August 27, 1952 $300; December 4, 1952 $162.40; October 2, 1953 $1,000; June 10, 1954 $400, with costs. Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ., concur.