Davison v. Budlong

Follett, J.: Chapter 414, Laws of 1881, prescribing the form and substance of denials in cases in Justices’ Court in which verified complaints are filed, is identical with section 500 of the Code of Civil Procedure, prescribing the form and substance of denials in courts of record. 'Without determining whether the denial interposed was technically sufficient under the rules applicable to pleading in Justices’ Courts, we are of the opinion that the evidence was sufficient [247] to establish tbe due appointment of tbe plaintiffs as tbe committee of tbe person and estate of Nelson Budlong. Tbe order appointing them, wbicb is in proper form, and tbe undertaking, wbieb is in proper form, given pursuant to tbe order, were produced by tbe county clerk from bis office, proved and received in evidence, wbicb was sufficient. Tbe demand of payment of tbe note at tbe time when and at tbe place where payable, and tbe refusal to pay, was duly proved, together with notice to tbe indorser, by tbe person who made tbe demand. One of tbe plaintiffs also testified that tbe indorser admitted receiving a notice of protest. Tbe evidence sufficiently established a cause of action against all of tbe defendants, and tbe remaining question is, was the action barred by tbe six years’ statute of limitations \ Tbe right to sue this note did not accrue until September 19, 1878. (Osborn v. Moncure, 3 Wend., 170 ; Edw. on Bills [2d ed.], 679, 958.) An action begun within six years after that date was in time. (Code Civ. Pro., §§ 380, 382.) In computing the time in wbicb an action may be brought, tbe first day upon wbicb it might have been brought is excluded. (Cornell v. Moulton, 3 Denio, 12; McGraw v. Walker, 2 Hilt., 404; Code Civ. Pro., §§ 380, 788.) Tbe summons and complaint were personally served on Kinne within six years from tbe day when tbe cause of action accrued. Tbe other defendants resided, and were served September 20,1884, in tbe town of Frankfort, by a constable authorized by chapter 191, Laws of 1877, to serve summonses in that town. Tbe summons and complaint were delivered to this constable September 18, 1884, for service, and served that day on one of tbe defendants, wbicb prevented tbe statute from applying as a bar in favor of tbe defendants served September twentieth. (Code Civ. Pro., §§ 399, 400.) Section 400 of the Code does not require that tbe summons shall be delivered to a constable of tbe town in wbicb tbe defendants reside, but to a constable authorized to serve tbe summons in tbe town in wbieb tbe defendants reside. Tbe judgment should be affirmed, with costs. HaRdot, P. J., and BoardmaN, J., concurred. Judgment of the County Court of Herkimer county affirmed, with costs.