#### THACHER v. HOPE CEMETERY ASS’N.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Contracts—Interpretation—Statute op Limitations.

A cemetery association resolved to borrow $2,500, to purchase land, but succeeded in obtaining only $2,200, of which plaintiff loaned $300. A certificate was issued to each lender, stating the amount of the loan, and “that one-half of the receipts of the sale of lots shall be applied exclusively to the payment of the sum of $2,500 loaned to said association by divers *569persons.” *Held,*that one-half of the receipts for the sale of lots was required to be set apart for the payment of the loan ($2,200), and the statute of limitations began to run against the loans from the time that stun was realized, and not from the time that one-half of the proceeds of the sale of lots amounted to $2,500, as the recital in the certificate as to the amount of the loan was made in contemplation of a loan of $2,500.

Appeal from judgment on report of referee.

Action by T. Scott Thacher against Hope Cemetery Association. From a judgment dismissing the complaint on the merits, plaintiff appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.

Wesley Brown, for appellant.

J. H. Stevens, for respondent.

HAIGHT, J.

This action was brought on the 5th day of October, 1883, to recover the sum of $300, and interest thereon from August 1, 1864. The defense is that more than six years had elapsed after the plaintiff’s cause of action accrued before this action was commenced, and that the plaintiff’s cause of action was therefore barred by the statute of limitations.

On the 1st day of August, 1864, the trustees of the defendant organized by the election of a president, vice president, secretary, and treasurer, and then ordered that the sum of $2,500 be borrowed for the purpose of purchasing land for a cemetery, and improving the same, and that the president and treasurer be authorized to issue certificates of indebtedness to such individuals by whom the money, or any part thereof, may be loaned; specifying the amount loaned by such individuals, and containing an agreement on the part of the association to pay 7 per cent, interest for the use of ■such money, and to apply one-half of the receipts from the sale of lots to repay the money. Thereupon, subscriptions for the loan were received, and certificates issued therefor to the amount of $2,200. Of that sum, the plaintiff’s testator loaned $300, and received therefor the following:

> “No. 25. We certify that Otis Thacher has this day loaned to Hope Cemetery Association three hundred dollars. It is agreed upon the part of said association that one-half of the receipts from the sale of lots shall be applied ■exclusively to the payment of the sum of $2,500 loaned to said association by divers persons, of which the said sum of $300 forms a part, and for the payment of the interest thereon. Said interest to be paid annually, and the ■receipt to be so applied shall he distributed on the first day of July and on the first day of January in each year, until said sum shall be fully paid.

> “A. L. Smith, Pres’dent.

> “August 1, 1804. ■ M. Adsit, Treasurer.”

It further appears that the defendant, with the avails of the loan, purchased land, and improved the same, dividing it into lots for the burial of the dead, and that between" the time of the issue of said certificates and the 1st day of'Julv, 1877, lots were sold for cash to the amount of $5,479.34, which amount was received by the defendant prior to that date, and that, during the same period, lots were sold to holders of the certificates of indebtedness, who were permitted to use their certificates in payment *570therefor as cash; that the certificates so used in the purchase of lots, and which were surrendered up to the defendant and canceled, on and prior to the 1st day of July, 1877, amounted to the sum of $1,575, leaving outstanding and unpaid on that date, 'including the plaintiff’s certificate, $625 in amount, only, of the-original loan of $2,200. The appellant contends that, of the amount of cash so received, he is entitled to but three twenty-fifths of one-half thereof, as shown by the following statement:

> Dates. Ain’t money. 1*2. R-25«

> January 1. 1865............................ $ 103 00 $ 51 00 $ 6 12-

> July 1, 1865..............................'.. 206 00 103 00 ' ' 12 36

> January 1. 1866............................. 86 00 43 00 5 16-

> July 1, 1866 ............................... 108 00 54 00 6 48

> January 1, 1867............................. 166 00 83 00 9 96

> July 1, 1867............................... 235 00 117 50 14 10-

> January 1, 1868............................ 100 00 50 00 6 00

> July 1, 1868............................... 137 50 68 75 8 25

> January 1, 1869............................ 88 50 44 25 5 33'

> July 1, 1869................................ 134 00 67 00 8 04

> January 1, 1870............................. 303 00 151 50 18-18=

> July 1. 1870 ............................... 203 10 101 55 12 18

> January Í. 1871..........................i. 263 50 131 75 15 81

> July 1, 1871................................ 519 00 259 50 31 14'

> January 1, 1872........................... 168 00 84 00 ■ 10 08

> July 1, 1872................................. 319 00 159 50 . 19 14

> January 1, 1873............................. 163 00 81 50 9 78

> July 1, 1873................................. 200 00 100 00 12 00

> January 1, 1874......................... 389 70 194 85 ' '23 38

> July 1, 1874................................. 155 00 77 40 9:30-

> January i, 1875............................ 217 76 108 88 13 06

> July 1, 1875 ................................ 140 50 70 25 ' '8 43

> January 1, 1876............................ 210 00 105 00 12 60

> July 1, 1876................................ 200 00 100 00 12 00

> January 1. 1877............................. 385 00 192 50 23 10

> July 1,1877 ................................ 279 78 139 89 ' 16 78-

> $5,479 34 $2,739 67 $328 '76-

> Amount applicable to plaintiff’s certificate Jiiiy 1, 1877, $328.7(1, which, taken from amount of plaintiff’s certificate, and interest to that date, $571.25, leaves due on plaintiff’s certificate at that date $242.49, with interest from that time,

• The difficulty, however, with his position, is that he takes no-account of the $1,575 in certificates that have been surrendered up-an d retired from time to time on the purchase of lots, and that at this time there was only outstanding, of such certificates, 1625-in amount. By treating these retired certificates as cash, and as reducing the loan in the amount of the certificates so retired, the amount on hand July 1, 1877, available for the payment of the plaintiff’s certificate, would be $1,129.25,—nearly double the amount required to pay the plaintiff’s claim. The referee appears to have so treated these certificates. His right so to do must be determined from the provisions of the contract:

> “It is agreed upon the part of the said association that one-half the receipts from the sale of lots shall be applied exclusively to the payment of the sum of $2,500 loaned to said association by divers persons, of which the said sum of $300 forms a part, and for the payment of the interest thereon.”.

It does not appear to us that the $2,500 mentioned in the certificate affect the question. A loan of $2,500 had been ordered by *571the association, but it had succeeded in getting only $2,200. The certificates had been prepared under the supposition that the full loan would be obtained; and, if it had been, then Thacher, loaning $800 of the $2,500, would have been entitled to three twenty-fifths of one-half of the receipts of the association from the sale of lots to apply in the reduction of the amount loaned by him. But only $2,200 was loaned. One-half of the receipts from the sale of lots was required to be set apart exclusively for the payment of the loan. He thus would be entitled to three twenty-seconds of one-half of the receipts. One-half of the receipts from the sale of lots is to be applied upon the payment of the loan, whatever the amount thereof may be. If the plaintiff’s testator had been the only subscriber to the loan, and the amount of such loan was the $300 loaned by him, would it be claimed that even though lots had been sold amounting to upwards of $5,000 he could not have recovered the amount of his loan, for the reason that it was not yet due? To so construe the contract would require the interpolation of a provision to the effect that three twenty-fifths of one-half of the receipts from the sales shall be applied to the payment of the loony instead of one-half of such receipts. It does not appear to us that such a construction should prevail. That adopted by the referee is more rational, and better in accord with the views expressed by the court on a former review of this case. 126 N. Y. 507, 2T N. E. 1040. The judgment appealed from should be affirmed, with costs. All concur.