Anhalt v. Englander , 254 A.D. 885 ( 1938 )

Order denying defendant’s motion to dismiss the complaint on the ground that the causes of action set forth are barred by the Statute of Limitations affirmed, with ten dollars costs and disbursements. No opinion. Carswell, Davis and Taylor, JJ., concur; Lazansky, P. J., and Hagarty, J., dissent and vote for reversal, with the following memorandum: Plaintiff’s right of action arose out of the contract determining the respective rights of the parties to the sum in question and at the time the money was paid over to defendant in accordance therewith and with plaintiff’s acquiescence. Plaintiff does not allege that this contract was the result of fraud nor does he seek to rescind it. The contract defines the rights and obligations of the parties and is the basis upon which plaintiff seeks recovery. (Brick v. Cohn-Hall-Marx Co., 276 N. Y. 259.)