#### Mary E. Miller, App’lt, *v.*C. Gaylord Wood and Milton Lincoln, Resp’ts.1

*(Court of Appeals, Second Division,*

*Filed October 22, 1889.)*

1. Limitation — Action fob damages fob fraudulent befbesentations is within the six yeabs statute.

An action to recover damages for fraudulent representations, by which the plaintiff was induced to purchase a worthless mortgage, is within the six year period of limitation.

2. Same — Code Crv. Peo., § 382, sub. 5.

Such action is one to procure a judgment for a sum of money on the ground of fraud, and, therefore, it is not saved from the statute by sub. 5 of § 382.

Appeal from an order of the general term -of the fifth department, affirming an order denying a motion for a new trial on exceptions taken at the Cayuga circuit, and ordering that the case be heard at general term in the first instance.

*Charles S.*Kent, for app’lt; *J. H. Camp,*for resp’ts.

1

 Affirming 5 N. Y. State Rep., 214,

Parker, J.

The defendants, by false and fraudulent representations, induced the plaintiff to purchase a mortgage which was without actual value. The sale was consummated on the 12th day of April, 1878. On the 23cl day of September, 1885, a little over seven years after the purchase, the plaintiff commenced this action by means of which she sought to recover the amount of damages sustained by reason of the fraud practiced upon her by these defendants.

The trial court rightly determined plaintiff's claim to have been barred by the statute of limitations prior to the commencement of this action. The cause of action accrued to plaintiff when the sale and transfer were completed, to wit, April 12, 1878. *Northrop*v. *Hill,*61 Barb., 144.

The Code provides that “ the following actions must be commenced within the following periods, after the cause of action has accrued.” Section 380. “Within six years: 1. An action upon a contract, obligation or liability, express or implied.” Section 382, sub. 1.

This cause of action is embraced within the subdivision quoted, unless appellant’s contention be true that it is excepted from its operation by subdivision 5 of the same section. Subdivision 5 reads as follows: “ An action to procure a judgment, *other than for a sum of money, on the ground of fraud,*in a case which, on the first day of December, 1846, was cognizable by the court of chancery. The cause of action in such a case is not deemed to have accrued until the discovery by the plaintiff, or the person under whom he claims, of the facts constituting the fraud.”

It will be observed that this subdivision does not relieve the appellant from the effect of the six year period of limitation, because by its terms is expressly excepted a case where the action is brought to procure a judgment “ for a sum of money on the ground of fraud.”

*715That result, and none other, is what the plaintiff has sought to accomplish in this action.

"Whether the defendant in an equitable action might have been held to be estopped from receiving the benefit of the statute of limitations, had it appeared that they had intentionally and successfully prevented the plaintiff from discovering the fraud until after the plaintiff’s cause of action had been barred by lapse of time, it is not necessary for us to consider here. The complaint contains an admission that the plaintiff had such knowledge more than six years before the commencement of the action, and the trend of plaintiff’s testimony is in the same direction.

The judgment should be affirmed, with costs.

All concur, except Bradley and Haight, JJ., not sitting.