Wakulaw v. State Bank , 207 N.Y.S. 228 ( 1924 )

Wagner, J.:

The plaintiff paid to the defendant the sum of $952.75 which it agreed to transmit to a savings bank in Russia to the credit of the plaintiff and a bank book evidencing such deposit was to be delivered to the plaintiff by the defendant in about two months after the payment. It is conceded that the bank book was never delivered by the defendant to the plaintiff. The money was paid to the defendant by the plaintiff in November, 1916. Hence, under the original contract the money was to be transmitted and the bank book delivered to the plaintiff in January or February, 1917. This action for a restitution of the money was instituted in February, 1924. The defendant contended in the court below that the breach of the contract, namely, the non-delivery of the passbook, occurred in January or February, 1917. Six years having elapsed since the breach, plaintiff’s claim, defendant asserted, is barred by the Statute of Limitations.

The evidence is undisputed that about two months subsequent to the payment of the money to defendant and on numerous other occasions up to December, 1923, the plaintiff made demands for the passbook in question and on each occasion he was informed by defendant’s representative that “ it had not yet arrived.” These words indicated an expectancy on the part of defendant to carry out its obligation if time for performance be extended. The plaintiff extended the defendant’s time of performance on each occasion that he made a request for the delivery of the passbook. In December, 1923, his last visit, the plaintiff was informed that the passbook could not be delivered. It was then that the breach occurred and plaintiff demanded restitution. It was then that the Statute of Limitations began to run. The defendant is estopped from now asserting that the breach occurred in January, 1917, when by its own assurances of future performance plaintiff was induced to waive performance within the time provided in the original contract and extended such time more than six years.

The action having been timely instituted and the defendant having concededly failed to perform the contract, the plaintiff is entitled to a return of his money. Judgment of the court below is, therefore, reversed, with $30 costs, and judgment is granted to plaintiff for the sum of $952.75, with interest and costs.

All concur; present, Bijiir, Wagner and Levy, JJ.