#### Charles B. Myers, as Administrator, etc., App’lt, *v.*James Cronk, as Administer, Resp’t.1

*(Court of Appeals,*

*Filed June 4, 1889.)*

1. Executobs and administbatobs—Reeebence undeb statute—Statute

of Limitations.

The claim, as presented to defendant, was on a note made by defendant’s intestate, payable to plaintiff’s intestate. There was a certain agreement made between defendant’s intestate and the heirs of plaintiff’s, intestate, by which the note was to be surrendered to defendant’s intestate. *Held,*that plaintiff, as administrator, with the will annexed, being an entire stranger to the whole transaction resulting in the agreement, he cannot claim that defendant is estopped from setting up the Statute of Limitations as a bar to the claim; that assuming the agreement to have been legal, and carried out on the part of the heirs, the cause of action accruing to> them does not belong to plaintiff, and is foreign to the litigation.

2. Convebsion—When demand and befusal must be proved.

Where an attempt is made to found a cause of action on an alleged conversion of property, a demand and refusal must be proved.

Appeal from a judgment, supreme court, general term,, third department, modifying a judgment.

This is a claim referred under the statute. The claim was on a note made by deceased, Hiram A. Ferguson, dated May 10, 1873, payable in one year, with interest, to Evaline A. Ferguson, or bearer. Hiram died August 10, 1878. Evaline died June 8, 1878. The note was outlawed May 13,1880, unless kept alive by a certain transaction of June, 1878.

*Edgar T. Brackett,*for app’lt; *Orín Campbell,*for resp’t.

1

 Affirming 10 N. Y. State Rep., 125.

Peckham, J.

We think there are no merits in this appeal.

It has been very properly said at the general term that if the alleged agreement were made between the Myers heirs and the defendant’s intestate in 1878, and if it were a valid agreement, then the defendant is not liable on the note,, be*507cause, under a valid agreement, the note was surrendered to the intestate; and if there were no valid agreement, then the intestate remained liable on the note from the time it became due, and it was consequently outlawed at the time of the commencement of this action.

Plaintiff insists that the contract as found by the referee, was actually carried out by the parties, and the liability thereby created on the part of defendant’s intestate, and irrespective of the statute of frauds, was a legal and valid one, and was a substitute for his original liability on the note, and as the arrangement was carried out by the legatees, the administrator of the intestate (the defendant herein), is estopped from setting up the defense of the Statute of Limitations as a bar to the claim made herein upon the note.

The reasoning is, as it seems to us, absolutely without foundation. Upon the assumption of the validity of the agreement, the note was extinguished long since. But it is also plain that the plaintiff represents neither of the parties to the agreement, and he is in privity with neither. The agreement was made between the defendant’s intestate on the one side, and the heirs of his deceased wife on the other. The plaintiff is, and he sues as, an administrator with the wiU annexed of such deceased wife, and in that capacity he is a total stranger to the whole transaction which resulted in the agreement in question. To estop the defendant, in a proceeding by such an administrator, from setting up the bar of the statute because of an agreement theretofore made by defendant’s intestate with third parties, to which agreement the plaintiff is neither a party or a privy, is to work out a new principle in the law of estoppel. Assuming the agreement to have been legal, and to have been carried out on the part of the Myers heirs, they had, in that event, a good cause of action against the estate of the intestate, to recover damages on account of its breach by such intestate. That cause of action is not set forth here, and it does not belong to the plaintiff as administrator with the will annexed of Mrs. Feguson’s estate, and the whole subject is foreign to this litigation. If the agreement were valid, the intestate could not, of course, rescind it or legally repudiate it. He could violate it and thus render his estate liable for its breach, but his violation of it could not revive the right of action on the note, which had been, long before that, legally extinguished by its surrender, pursuant to the terms of the agreement.

No case cited by plaintiff’s counsel holds any such principle as that in a case like the present, the defendant administrator is estopped from setting up the defense of the statute. On the other hand, if this alleged agreement be *508void, the plaintiff’s attitude is equally untenable. In that-event all that can be said is that the defendant’s intestate and the Myers heirs entered into an agreement which was-absolutely void, and which therefore bound no one. The plaintiff, in the capacity in which he sues, was in no way connected, even with such void agreement, and in truth he-was not appointed until after the decease of the defendant’s intestate. The fact that no administrator was appointed at an earlier date did not, however, prevent the-running of the statute in the meantime.

Subsequent to his appointment, and before the commencement of this proceeding to recover On the note, the statute had run against it, and why the defendant should not be able to set it up, I cannot see. There was a clear-legal right at all times to prove the will of Mrs. Ferguson and to take proceedings to collect the note, and if nothing of that kind were done because of an understanding between some parties, which was wholly void, such understanding can form no estoppel against defendant from setting up the statute in a proceeding to collect the note by the administrator with the will annexed of the estate of Mrs. Ferguson, who, in such capacity, has no connection with the agreement in question, as a party to it, and who-stands in no privity whatever with any one who was a party to it.

Not being bound by any estoppel himself, he can claim the benefit of none, for it is familiar that estoppels, to be binding, must be mutual.

We think there is nothing in the idea that the claim in this proceeding was for the note itself as a piece of paper. It was clearly a proceeding to obtain payment of a debt evidenced by the promissory note in question. The claim itself shows such to be the fact, and the course of the trial is also conclusive evidence thereof. To sustain the action, the plaintiff offered and read in evidence the note in question, and it was objected to upon the ground that it was barred by the statute of limitations, which objection was overruled, and the note offered in evidence. As the note from its date, and the absence of any endorsements of payment of interest, or any part of the principal, was apparently outlawed, the plaintiff then continued the case for the purpose of attempting to prove the agreement in question as an answer to the statute. There was upon the trial no pretense of a cause of action for conversion, or for the delivery of the piece of paper on which the note was-written, nor do we think that any such cause was proved, even if it had been ■ alleged. No demand or refusal was proved, and when the attempt is now made to found a cause of action on an alleged conversion of property which *509came properly into the hands of defendant’s intestate, such proof is necessary. It is true that no such question as to the necessity of a demand, eic., was raised on the trial, but the fact is clear that, upon the trial, there was no occasion for it, because it was not pretended or assumed, so far_ as. this record shows, that any cause of action for a conversion, of the note was alleged or attempted to be proved. When it is alleged for the first time in this court, an answer to it-may, for the first time, be here set up.

There was no error in the disposition of the case by the-general term, and its judgment should be affirmed, with, costs.

All concur.