Summary
In Payne v. Gardiner, 29 N.Y. 146, a leading case in this State on the respective characteristics of a loan and a deposit, there is discussed the character of a transaction where a sum of money had been transferred to others upon an agreement to pay six per cent. interest and no time for repayment being specified.
Summary of this case from People v. ThomasOpinion
March Term, 1864
James C. Carter, for the appellant.
Geo. G. Reynolds, for the respondent.
If the transaction between the plaintiff's testator and Slate, Gardiner Howell is to be deemed a mere loan of money, there being no time designated for payment, it became presently due, and the statute of limitations began to run from the date of the receipt, and the action is barred, unless the payment by the firms of Slate, Gardiner Co. and Slate Co. operated to revive the debt, and thus prevent the running of the statute.
If, however, the transaction was not a loan, but a deposit of the money by the testator with Slate, Gardiner Howell, to be repaid only upon demand, then the action is not barred, and the judgment should be affirmed.
The distinction between a loan and a deposit of money to be used by the depository is not a broad one, but sufficiently so to have enabled courts and elementary writers on the law to establish rules for both species of contract.
By a loan of money is meant the delivery by one party, who is called the lender, to, and the receipt by the other party, who is called the borrower, of a given sum of money, upon an agreement, express or implied, to repay the sum loaned with or without interest. A loan is usually made at the request and for the benefit of the borrower, and differs from the commodatum of the civil law in this, that in the latter the specific thing loaned was to be returned; whereas, by the other, the thing loaned may be consumed, and the depository discharged himself by returning another thing of the same value, or its equivalent in money.
A deposit is commonly defined to be a naked bailment of goods to be kept without recompense, and to be returned when the bailor shall require it. (Story on Bailments, 3, § 4.)
A deposit of money with a bank or private person is not, therefore, the deposit of the civil law, nor is it what in that law was designated by the term mutuum, which was a loan of property for consumption and to be returned in kind, and without interest or compensation for the use, but it is what Pothier calls an irregular deposit, which differed from a mutuum in this, that the latter has principally in view the benefit of the receiver, the former the benefit of the bailor. (Story on Bailments, 61.)
In cases of mutuum the party borrowing was not held to pay interest upon the money lent; but in cases of irregular deposit, interest was due by the depository, both ex nudo pacto and ex mora. This distinction between the two classes of deposit, as to interest, is not recognized by our law. The depository being liable in each for interest, in the event of a breach of duty.
A deposit of money with a bank or private person is what is known in the civil law as a mutuum or irregular deposit — the distinction between the two kinds of deposit not being recognized by the common law.
When money is borrowed, and no time of payment is fixed by the contract of loan, the debt, as already stated, is instantly due, and an action may be brought without demand — the bringing of the action being a sufficient demand to entitle the lender to recover. (Chitty on Contracts, 734; Norton v. Ellam, 2 M. W. 461.)
Even if the debt is by the terms of the agreement to be paid on demand, yet no special demand is necessary; the money being due without it.
In the cases of deposits, however, a demand was by the civil law, and is now by our law absolutely essential to a right of action, unless there was a wrongful conversion or some loss by gross negligence on the part of the depository. (Story on Bailments, 82.)
In case of a mutuum or irregular deposit, a demand was necessary to perfect the liability of the depository. It is said by Pothier (See his work on Contracts, by Evans, 2 Vol. 126): "When a man deposits money in the hands of another to be kept for his use, the possession of the custodian ought to be deemed the possession of the owner until an application and refusal, or other denial of the right; for, until then, there is nothing adverse, and I conceive that upon principle no action should be allowed in these cases without a previous demand — consequently, that no limitation should be computed further back than such demand."
In Story on Bailments (p. 66 § 88), it is said that "in the ordinary cases of deposits of money with banking corporations or bankers, the transaction amounts to a mere loan or mutuum, or irregular deposit, and the bank is to restore not the same money but an equivalent sum whenever it is demanded."
In Downes v. Phoenix Bank of Charlestown, (6 Hill, 297), the plaintiff sued to recover money deposited with the defendant, a foreign corporation, and on the trial, after proof of the deposit was made, the defendant's counsel moved for a nonsuit on the ground that the plaintiff was bound to prove a demand before suit brought. The motion was denied, and there was a verdict for the plaintiff. A new trial was granted by the supreme court, on the ground that an action did not lie until after demand made. Justice BRONSON, after remarking that the deposit of money with a banker is not strictly a deposit nor bailment of any kind, but is a mutuum or irregular deposit, and that it is substantially a loan to the bank, says: "still the commonly received opinion is that the banker cannot be sued for the money until after the customer has drawn for it or in some other way required its repayment, * * * and if such be the nature of the contract the banker is not in default, and no action will lie until payment has been demanded." In a subsequent part of his opinion, he says that the bringing of an action is not in such a case a sufficient demand, but that an actual demand must be made.
The reason assigned by the learned judge, why a special demand should be made in such a case, is "that no one could desire to receive money in deposit for an indefinite period with a right in the depositor to sue the next moment and without any prior intimation that he wished to recall the loan." This presents the whole argument. The injustice of the opposite rule is so apparent that it needs but to be stated in order to be rejected.
The question recurs, was the transaction between the plaintiff's testator and Slate, Gardiner Howell, a loan, or was it a deposit? The paper which was given by the firm to the testator is not conclusive on that subject, and we must resort to the circumstances attending the transaction in order to arrive at the intention of the parties. For in the construction of this contract, as of all others, the intention of the parties must control.
The testator was a sailor, and having earned $1,000 for which he had no present use, applied as it would seem, to Slate, Gardiner Howell, who were engaged in the oil and whaling business, and thereby acquainted with the people of Sag Harbor, of which Howell, one of the firm, and the testator were natives, to receive the money on deposit, paying for the use of the same six per cent interest. This was not an ordinary loan of money. Such a loan is usually made at the request of and for the benefit of the borrower. If any voucher is given, it is a note by which the borrower promises to pay the money on demand, or at some future day. In this case the money was received by the firm at the request of and for the benefit primarily of the testator, and the voucher given contains a mere admission of the receipt of the money without any promise to repay it. If the money had been left with a bank, instead of Slate, Gardiner Howell, it would have been credited on the books of the bank to the testator, and if any voucher had been given it would have been a certificate that the $1,000 had been deposited by the testator to his credit. If then, the transaction with the bank would have been a deposit entitling the bank to a demand of the money before an action could be brought, can any reason be assigned why a deposit with an individual should be deemed a mere loan which could be sued for without a demand? The civil law admitted of no such distinction, and there is no decision at common law which sanctions it, that I have been able to find.
There was undoubtedly a loan by the testator to the firm, of the $1,000, but it was just such a loan as every depositor in a bank makes with the bank, and the rights and liabilities of the parties must be, upon principle, as I insist they are upon authority, identical.
Questions as to the rights and remedies of depositors have generally, if not altogether, arisen in actions by and against banks; but it is every day's practice for persons having surplus funds to deposit them with merchants, lawyers and other business men, and they are received as often as matters of favor to the person depositing as with a view to the advantage of the person receiving; and I apprehend that such persons believe that before they can be sued for the money a demand must be made of the deposit. Such a rule not only gives effect to the intention of the parties, but it is essentially just.
Why should a demand be held necessary in the case of a deposit in a bank, and unnecessary in case of a deposit with a private person? In both cases, the depository is not an ordinary borrower; that is to say, they do not solicit the deposit for their own benefit exclusively. In both they hold themselves out as willing to receive deposits, and to pay interest, perhaps, thereon. The same considerations which render proper a demand before suit, in the case of the one, are equally operative in the case of the other.
A distinction exists between a mere loan and a deposit. They are governed by different rules; and, in the absence of any legislative prohibition or of any rule of public policy, parties should be permitted to take upon them selves the obligations of either form of contract which they deem proper, and the law should give effect to their intentions when ascertained.
I entertain no doubt but that the transaction in question was a deposit, and that the rights and liabilities of the parties are precisely the same as if the money had been in a bank; and hence, there was no right of action against the depositories until actual demand made; and the statute of limitations began to run from the same time. If such is the law, then the demand in question was not barred, and the judgment should be affirmed.
If, however, I am wrong in considering the transaction as a deposit, and it is to be treated as a loan, I am nevertheless of the opinion that the action is not barred.
If it is a loan, then the paper given by Slate, Gardiner Howell, to the testator, is in effect a promissory note on interest, and payable on demand.
Such a note was held in Merritt v. Todd ( 23 N.Y. 28), to be a continuing security, and was not dishonored until after actual demand. If it is a continuing security, and a demand is necessary to fix the time when the money specified therein becomes due, it must follow that the statute of limitations does not begin to run in favor of any of the parties to it until such demand is made. That statute commences to run against an action only from the time a right of action accrues; and within the doctrine of Merritt v. Todd there is no right of action until demand. It is said this case of Merritt v. Todd does not apply to this case, because there the action was against an endorser, and the decision in that case must be confined to the endorser, and does not and cannot apply to the maker. It is impossible to restrict the language of the chief judge in that case to the case of an endorser. He sets out, in his opinion, by remarking that it was left uncertain when a note payable on demand with interest matured; that in England such a note was held to be a continuing security, and that the holder might make demand at any time, and until such demand the endorser was not discharged; while in this it was held to be necessary to make a demand within a reasonable time, or the endorser would be discharged. The question as to when such a note became due was frequently as important in the case of the maker as of the endorser. The former was entitled to avail himself of any defense he might have against the payee, if the holder obtained it after maturity. Judge COMSTOCK expressly refers to the importance of the question to both makers and endorsers of such paper, and lays down a rule which he thinks is best calculated to remove uncertainty, and which will enable all persons dealing in such paper to ascertain their rights and liabilities in respect to it. The learned judge expresses himself thus emphatically upon this point: "But whatever may be the rule when the security is not on interest, we think that a note payable on demand with interest is a continuing security from which none of the parties are discharged, until it is dishonored by an actual presentment and refusal to pay. The loan or forbearance of money may be for a definite or an indefinite time. If the parties declare in the written instrument, which is the only evidence of their agreement, that the money shall be paid on call with interest in the meantime, a productive investment of the sum for some period of time is plainly intended. What then is that period? The only answer which can be given is, that it is indefinite or indeterminate, and ascertainable only by an actual call for the money."
It seems to me impossible to say that the reasoning of the learned judge does not apply as well to the maker of such paper as to the endorser; and if it does, then the conclusion is irresistible that there is no liability on such a note of any party until actual demand.
No question is made by counsel, nor was there any raised on the trial, as to whether the firm of Slate, Gardiner Howell was discharged by the transfer of the deposit to the firm of Slate, Gardiner Co., or whether that firm was discharged by a like transfer to Slate Co. I have not, therefore, examined that question; nor did I deem it necessary to inquire whether the payment of interest by those last-named firms prevented the running of the statute of limitations.
I am of the opinion that the judgment and order appealed from should be affirmed, with costs.
INGRAHAM, J., also read an opinion in favor of affirmance.
DENIO, Ch. J., concurred; holding that the payment of interest prevented the statute from running. But he agreed with WRIGHT, J., that no demand was necessary.
JOHNSON, DAVIES and HOGEBOOM, JJ., were for affirmance.
One of the defences interposed by Gardiner, was the statute of limitations; and the single question now is, whether the claim of the plaintiff, as against him, was barred by that statute.
The transaction was a loan of money, no time being specified for its payment. The lender took from the borrowers a writing acknowledging the receipt of the money, and that it had been placed to his credit on their books at six per cent interest. The debt which constitutes the plaintiff's cause of action, arose instantly on the loan. Did an action accrue thereon forthwith without any demand, or was an actual demand necessary before bringing an action? Could the plaintiff have sustained an action for borrowed money at once, and without demanding payment, or was a demand indispensable to his right of action? If the debt was payable immediately, and a demand unnecessary, the right of action was perfect on the 9th of May, 1848, and the statute of limitations began to run from that date. On this view, the action was barred as against the appellant, Gardiner, unless there was evidence of a new promise on his part. On the other hand, if a preliminary demand was necessary to the maintenance of the action, it was not barred. There was no actual demand of payment of the debt until June, 1861, and as the cause of action must accrue before the statute of limitation can begin to run, six years must elapse after the making of the demand, before the statute bar will attach.
I think it clear on principle and authority that in a case like the present a demand is not a condition precedent to the right of action. It was simply a case of money lent, payable with interest, and creating a present debt, and requiring no demand as a necessary preliminary to a suit. The debt arose instantly on the loan, and the stipulation for interest did not change the legal nature of the transaction. When money is lent, the law will imply a promise by the borrower to repay it. A debt is created due and payable immediately, without any demand. It is not denied that the parties may stipulate as to when the debt shall become due, or in respect to any other collateral thing, but in the absence of any agreement, it is due presently, there is an immediate liability to pay, and no obligation in law to make any demand of payment. An action accrues immediately after an express or implied promise to pay money on demand, and whether it be a simple indebtedness evidenced by a receipt to the effect that it is payable with interest, or a note in terms payable on demand, this result follows. On this point there is entire unanimity of authority. (Wilkinson on Lim. 45; Powell v. Pease, reported in Wilk. on Lim. 110; Kimball v. Ball, 10 Mod. R. 38; Norton v. Ellam, 2 Meeson and Welsby, 461; Waters v. Thanet, 7 Dowl. P.C. 251; Little v. Blunt, 9 Pickering R. 48; Newman v. Kettelle, 13 Pickering, 488; Ruff v. Ball, 7 Har. and J. 14; Larason v. Lambert, 7 Halsted, 247; Lafarge v. Jayne, 9 Barr. 410; Wenman v. The Mohawk Ins. Co. 13 Wend. 267; Howland v. Edmonds, 24 N.Y. 307.) The circumstance that the note or other obligations is payable by its terms with interest, as has been before said, does not affect the rule. ( Norton v. Ellam, 2 M. and W., supra, Wenman v. Mohawk Ins. Co., supra.)
It was supposed by the supreme court that the decision of this court in Merritt v. Todd, (23 N.Y.R. 28,) wrought a change in the before well established rule that when there is a debt in presenti, and not a debt arising upon the performance of a certain condition, but one plainly precedent to the demand, then no demand before suit against the debtor is essential, even though the promise in terms is to pay on demand. This, I apprehend, is a misconception of the intended effect of that decision. That action was against the endorser of a note payable on demand with interest, and the question was when the note was to be deemed due, so as to require the presentment, demand and notice necessary to charge the endorser. The case decides (and this is all) that the endorser of such a note remains liable until an actual demand, it being a continuing security, and the holder is not chargeable with neglect for omiting to make such demand within any particular time. This was the doctrine of the English courts, ( Brooks v. Mitchell, 9 Meeson and Welsby, 15; Barough v. White, 4 Barn. and Cress. 325), while there were, on the contrary, American cases holding that the endorser was discharged unless the demand was made with due diligence in the general terms of the commercial law. To charge an endorser, payment must be demanded of the maker at the maturity of the note. The period of maturity of a term note is of course fixed and definite. The only principle established in Merritt v. Todd was, that in the case of a note payable on demand the period of maturity is to be deemed to occur continually, or, in other words, such a note is a continuing security, and does not become overdue by the effluxion of time. But it does not follow, because such a note is due to-day so as to permit steps to charge the endorser, that it may not be deemed to fall due to-morrow also for the same purpose, and that without being overdue.
It cannot with truth be said that the question in Merritt v. Todd, and that in this case are at all identical, or have any necessary connection with each other. To charge an endorser, an actual demand is always necessary, and the sole question decided in the former case was, that the demand (two years and upwards having elapsed after the date of the note) had been made in due time. In this case (conceding that the rights and liabilities of the parties are to be determined the same as if the receipt contained the words payable on demand), the question is, whether a demand was necessary to render the cause of action perfect as against the debtor. In other words, whether a note or other obligation expressed to be payable on demand, may not be sued, as against the maker, at once, and without any preliminary demand? The undertaking of an endorser is strictly conditional, involving as a condition precedent, the failure of the maker to discharge his obligation on an express demand made therefor. The undertaking of the maker is absolute to pay his own debt, and to charge him, a demand is not in general, at all requisite. The liability of an endorser depends upon the performance of a condition precedent, viz: an actual demand of payment from the maker; and no action lies without the performance of the condition. But the right of action is complete against the maker of a note on terms payable on demand, immediately after giving it. No preliminary demand is essential to the establishment of a cause of action founded on a promise to pay a sum of money, notwithstanding the terms of the contract. It was clearly not intended to decide in Merritt v. Todd, that when the promise is in terms to pay money on demand, an actual demand before suit brought is necessary; for this would have been to override and disregard an unbroken current of authority, to which no allusion was made. It would have been, in effect, to hold a prior demand essential to the foundation of an action against the maker of a note payable on demand; a view repudiated by this court in the subsequent case of Howland v. Edmonds ( 24 N.Y. 107.)
In the case, therefore, of a promisory note payable on demand with interest, the statute of limitations begins to run from the date of the note. So, also, in a case like the present, where the indebtedness arises on a loan of money, though there be a stipulation for interest, the statute begins to run from the time of lending. A cause of action accrues upon the loan the moment when made. There is an immediate liability to pay; and the plaintiff in this case might at once have brought suit against his debtors without any demand. This suit was commenced against the defendant's as survivors of the firm of Slate, Gardiner Howell, more than thirteen years after the cause of action accrued, and of course, the statute has attached, unless prevented by a new promise, express or implied.
With respect to the defendant Slate, there was, perhaps, a sufficient acknowledgment of the existence of the debt, and a recognition of liability as late as May, 1859. It is, however, of no consequence as regards him, as he did not interpose the defense of the statute, and has not appealed. But how is it as to the appellant Gardiner? There is no proof of any express promise by him to pay the debt, nor after May, 1852, or for more than nine years before the commencement of the action, any acknowledgment by him of its existence, with an admission or recognition of an existing liability to pay it, from which a new promise might be inferred. As the law stood in this state before the decisions in Van Keuren v. Parmelee (2 Comst. R. 523), and Shoemaker v. Benedict (1 Kernan, 176), a verbal acknowledgment and promise to pay an indebtedness of a firm, or payment of interest on such indebtedness by one partner, after the dissolution of the co-partnership, would revive the debt against the firm, and prevent the running of the statute of limitations as against the retiring partner. But the law is now to be deemed settled by those cases, that neither a verbal acknowledgment and promise to pay a firm debt, or the payment of interest on the debt by one partner after dissolution, whether the debt had or had not become barred at the time of such recognition and promise, will have the effect to revive the debt against the firm, and continue the joint liability of all for six years from the time of such acknowledgment or payment. It is conceded in Shoemaker v. Benedict, and in Winchell v. Hicks ( 18 N.Y. Rep. 558), that the case of joint debtors and that of co-partners, after dissolution, is in all respects the same. The cause of action, in both cases, arises on the new promise growing out of the payment or acknowledgment; and such new payment or acknowledgment must be shown affirmatively to have been made by the party sought to be charged, or by some agent of his thereto authorized. In the case of co-partners, after dissolution, no such authority for one partner to act for the other exists any more than in the case of simple joint debtors. ( Van Keuren v. Parmelee, supra; Shoemaker v. Benedict, supra; Winchell v. Hicks, supra.) If, therefore, the payment of interest on the debt after May, 1852, by Slate Co., is to be deemed a payment made by Slate as a member of the firm of Slate, Gardiner Howell, it did not affect the defense of the statute of limitations as to his partner Gardiner. After dissolution of the latter firm in respect to creditors, Slate and Gardiner were joint debtors, and nothing more. If the payment of interest, or any part of the principal by a joint maker of a promissory note would not have the effect to rescue the debt from the force of the statute as to another joint maker (and it has been settled that it would not), the fact of the payment of interest by Slate would not have that effect. Payment of principal or interest is only evidence of a new promise, or from which one may be implied. The party making the promise or acknowledgment must be the one to be charged, or it must be made by a person duly authorized by him. Joint debtors are not agents for this purpose; nor is there any such agency of co-partners after dissolution.
But it is claimed that there was a direct recognition of the debt by Gardiner, or that the payments of interest by Slate Co., after May, 1852, were made under his authority and by his direction and affected him as though made by himself. I do not understand that Gardiner, by any act or declaration whatever on his part, after 1852, recognized the debt as an existing liability of the firm of Slate, Gardiner Howell, or of Slate, Gardiner Co., or admitted his liability to pay it as a member of either firm. Indeed, there was nothing to show knowledge by him that the debt was outstanding after January, 1853, until apprised of the fact by the plaintiff's demand of payment in June, 1861. But it is said that on the dissolution of the firm of Slate, Gardiner Co., in 1852, Gardiner put Slate and Lyles under an express obligation to pay all the debts of the firm (the plaintiff's debt included), and that the payments of interest by Slate Co. in pursuance of such obligation taken by Gardiner were therefore made under his authority and affected him as though made by himself. The obligation referred to is expressed in the agreement dissolving the firm. The provision was the usual covenant for indemnity which a retiring partner takes who leaves with the remaining partners the means wherewith to pay the firm debts. The position that this covenant was in the nature of a request or authority to Slate Co. to make payments of interest on the plaintiff's debt, is an utter perversion of it. It does not purport to confer any authority upon, or make any request of Slate Lyles. Conceding that the debt of the plaintiff was a debt of the firm of Slate, Gardiner Co., the fact that Slate Lyles stipulated to pay it, and save Gardiner harmless, cannot be tortured into a request by Gardiner to pay it, or any part thereof, for him. The nature and terms of the engagement is utterly inconsistent with the notion of their acting as Gardiner's agent, either in paying the principal or interest of the debt. Slate Co. agreed with Gardiner to pay the debts of Slate, Gardiner Co., and make them their own; and as between them and Gardiner they were not thereby constituted his agents for making the payments. Slate Co. were to pay the debts, not only because they were jointly liable with Gardiner to do so, but because, as between themselves and him, they had become solely liable to pay them. Paying principal or interest of the debts was a payment on their own account, but as being the sole debtors. The conclusion would be an absurd one that Gardiner, after having taken a stipulation that Slate Co. should assume the debts as their own, would forthwith and in the same breath, proceed to pay them, or make provision for paying them himself. The plaintiff's counsel seems to entertain the vague notion that the plaintiff's debt being included in those of Slate, Gardiner Co., at the retirement of Gardiner from the firm, in 1852, and the latter having obligated the remaining partners to pay the firm debts, such agreement was equivalent to a request to pay them; and any payments subsequently made by Slate Co., of principal or interest, were by his authority. Suppose, however, the agreement in question were to be construed as a request to pay the firm debts, including that of the plaintiff, how is the payment of interest afterwards, by Slate Co., any acknowledgment or recognition by Gardiner of the debt as his own? Slate Co. paid the plaintiff's draft on them for the interest due on the 9th May, 1859, but what evidence is that of Gardiner's recognition of a subsisting liability as against him, or from which a new promise might be implied? Undoubtedly if Slate Co. were in any sense his agents to make the payment, the acknowledgment that the debt was then in existence, and his liability to pay it, would be regarded as made by him. But there can be no pretence of any agency created by the agreement of dissolution of the firm of Slate, Gardiner Co., to keep the firm debts alive by new promises to pay them. The payments of interest, then, by Slate and Co., were no evidence whatever of an acknowledgment by Gardiner of the debt as subsisting against him. The case of Winchell v. Hicks (18 N.Y.R. 558) affords no countenance to the position of the plaintiff's counsel. That action was upon a joint and several note, made by a principal and three sureties, and the single question was, whether there had been a verbal recognition of liability by two of the sureties, so as to arrest the running of the statute of limitations. Five years after the making of the note (the principal having paid the interest annually for three years), the holder called upon Tanner and Hicks, separately, for payment, demanding principal and interest, but being willing to forego the payment of the principal if the interest should be paid. Tanner requested him to see Bowman, the principal, and urge him to pay the interest; and said as long as he could keep the note along by Bowman paying the interest he made a good bargain, and if he had eventually to pay the principal it would not be very hard, he should not feel very bad, and would not be much the loser, as he had a good deal of business with him. The holder also saw Hicks, and said to him, as he did to Tanner, that he wanted the interest on the note; and Hicks replied in substance, "He must get it out of Bowman." The holder informed Bowman of what they said, and he paid the interest. This was held to be an acknowledgment of the debt and a sufficient recognition of liability, by Tanner and Hicks, to bind them. The present case would have assimilated somewhat to that of Winchell v. Hicks, had Payne, before receiving the payments of interest from Slate Co., called upon Gardiner and demanded payment of him, and the latter had acknowledged the debt as his own, and told Payne to go to Slate Co. for payment. As the case now stands, there was no recognition of liability by Gardiner after January, 1853, and if the covenant in question can be tortured into any request or direction to pay Slate Co., it was to pay the principal of the plaintiff's debt forthwith. If this were otherwise, a retiring partner, or a joint debtor, could never take a covenant of indemnity from his co-debtors without putting it out of his power to plead the statute of limitations if his co-debtors chose to prevent him.
Upon the whole, I am of the opinion that the action was barred as against the defendant Gardiner; and that the refusal to dismiss the complaint, as against him, was error.
The judgment of the supreme court should be reversed, and a new trial granted, with costs to abide the event.
SELDEN, J., concurred in the views of WRIGHT, J.
Judgment affirmed.