Alfred Higgins, Resp’t, v. Jacob Crouse, App’lt.
(Supreme Court, General Term, Fourth Department,
Filed September 23, 1893.)
Limitation—Discovert of fraud.
Plaintiff brought this action to rescind a sale of corporate stock made in 1865, on the ground of fraud, and claimed that, as he did not discover the fraud until 1889, he had a right of action under § 382, sub. 5 of the Code. The evidence showed that no dividends or assessments were made on the stock, that plaintiff resided in the same city with the corporation’s officers and could have ascertained at any time when it stopped work, and that in 1871 he had made up his mind that his money was lost. Held, that plaintiff’s delay showed a lack of reasonable diligence and that the action was barred, as the statute of limitations began to run from the time when, by reasonable diligence, knowledge of the fraud ought to have been obtained.
(Higgins v. Crouse, 63 Hun, 134; 44 St. Rep., 151.)
Appeal from a judgment entered upon a decision made at the Onondaga special term December, 1892. When the plaintiff rested the defendant moved for a non-suit upon several grounds, *95which was denied in the following language: “I think this case should go to the court of appeals; 1 will deny the motion.” The defendant took an exception. A similar motion was made at the close of the evidence and an exception taken. Several requests to find were refused by the trial judge, and exceptions to the refusals, and also to the findings as made, were filed. Plaintiff’s complaint alleges that the defendant perpetrated a fraud upon him in 1865 in making representations as to 150 shares of the capital stock of the Shaffer Parm Oil Creek Company of Pennsylvania, sold by the defendant to the plaintiff for the sum of $1,200, and seeks to have that sale set aside and cancelled, and to recover of the defendant the $1,200.and interest thereon. The answer contained denials and a defense of the statute of limitations.
Waters, McLennan & Waters, for app’lt; T. K. Fuller, for resp’t.
Per curiam.
Upon a former appeal the" question relating to the statute of limitations was examined and an opinion delivered which is found reported in 68 Hun, 134; 44 St. Rep., 151. No additional evidence sufficient to take the case away from the principle laid down in the decision made upon the former appeal was given. It is, therefore, the duty of this court to adhere to the decision made then; and applying it to the case before us, it leads to a new trial. See Higgins v. Crouse, 63 Hun, 134; 44 St. Rep., 151; Foot v. Farrington, 41 N. Y., 164; Weaver v. Haviland, 68 Hun, 376; S. C., Combined Official Series of N. Y. State Reports, 376; S. C., 52 St. Rep., 311; Corn v. Rosenthal, 51 id., 858.
Judgment reversed on the law and facts and a new trial ordered, with costs to abide the event.
Hardin, P. J., Merwin and Pabkeb, JJ„, concur.