Lundy v. City of New York , 292 N.Y.S. 170 ( 1936 )

Appeal from judgment in favor of plaintiff on two causes of action — the first, to cancel certain taxes, water rates and an assessment; the second, to recover a certain sum paid as rent. Judgment on the first cause of action reversed on the law, without costs, and complaint dismissed as to that cause of action, on the ground that the determination as to it is contrary to law, the action being barred by the Statute of Limitations. Judgment on the second cause of action affirmed, without costs. No opinion. Davis, Adel and Taylor, JJ., concur; Lazansky, P. J., and Hagarty, J., concur in the disposition of the first cause of action, but dissent as to the second, with the following memorandum: The plaintiff could have commenced his cause of action thirty days after the service of his notice upon a proper allegation in his complaint that the comptroller neglected or refused to make an adjustment or payment although thirty days had expired prior to the commencement of the action. (Casey v. City of New York, 217 N. Y. 192.) Further, there was no acknowledgment of the indebtedness in writing (Civ. Prac. Act, § 59) and, in any event, the city authorities had no power to waive the provisions of the Statute of Limitations. (Matter of City of New York [Elm Street], 239 N. Y. 220.)