Miller v. . Wood

Parker, J. The defendants, by false and fraudulent representations, induced the plaintiff to purchase a mortgage which was without actual value. The sale was consummated on the 12th day of April, 1878. On the 23d day of September, 1885, a little over seven years after the purchase, the plaintiff commenced this action by means of which she sought to recover the amount of damage sustained by reason of the fraud practiced upon her by these defendants. The trial court rightly determined plaintiff’s claim to have been barred by the statute of limitations prior to the commencement of this action. The cause of action accrued to plaintiff when the sale and transfer were completed, to wit, April 12, 1878. (Northrop v. Hill, 61 Barb. 144.) The Code provides that “the following actions must be commenced within the following periods after the cause of action has accrued.” (§ 380.) “ Within six years: 1st. An action upon a contract, obligation or liability, express or implied.” (§ 382, sub. 1.) This cause of action is embraced within the' subdivision quoted, unless appellant’s contention be true, that' it is excepted from its operation by subdivision 5 of the same section. Subdivision 5 reads as follows ;■ “An action to procure a judgment, other thorn, for a sum of money on the ground of fraud, in a case which, on the 1st day of December, 1846, was cognizable by the Court of Chancery. The cause of action in such a case is not deemed to have accrued until the discovery by the plaintiff, or the person under whom he claims, of the facts constituting the fraud.” It will be observed that this subdivision does not relieve the appellant from the effect.of the six-year period of limitation, because, by its terms is expressly excepted a case where the action is brought to procure a judgment “ for a sum of money on the ground of fraud.” That result, and none other, is what the plaintiff has sought to accomplish in this action. *355 Whether the defendant in an equitable action might have been held to be estopped from receiving the benefit of the statute of limitations, had it appeared that they had intentionally and successfully prevented the plaintiff from discovering the fraud until after the plaintiff’s cause of action had been barred by lapse of time, it is not necessary for us to consider here. The complaint contains an admission that the plaintiff had such knowledge more than six years before the commencement of the action, and the trend of plaintiff’s testimony is in the same direction. The judgment should be affirmed, with costs. All concur, except Bradley and Haight, JJ., not sitting. Judgment affirmed.