#### De Witt C. Wheeler, as Administrator, etc., Plaintiff, *v.*James H. Breslin, Defendant.

(Supreme Court, New York Special Term,

June, 1905.)

Limitation of action — Accruing of cause of action — Accounting by pledgee — Equity — Laches.

Upon a pledge of goods, the pledgor’s right to tender the amount of the indebtedness and demand the return of the goods accrues when the debt becomes due; and, after the expiration of sixteen years from the time when the debt became due, an action for an accounting of the disposition of the proceeds of the goods, which had been sold by the pledgee at private sale without notice to the pledgor or his representatives, and for a judgment for the difference between the sum realized and the amount of the debt, cannot be maintained.

After the lapse of so many years, equity ought to refuse cognizance of the claim independently of the statute.

Action for an accounting of the disposition of the proceeds of a sale of goods given to the defendant by plaintiff’s intestate as collateral security for the payment of certain notes, or of the goods remaining, and for a judgment for the difference between the sum realized and the amount of the debt represented by the notes beside interest. Defense, the Statute of Limitations.

Edward A. Alexander, for plaintiff.

Samuel B. Thomas, for defendant,

Leventritt, J.

The important question involved in this case is whether or not the plaintiff’s cause of action is barred by the Statute of Limitations.

It is sufficiently established by the evidence that in the month of March, 1888, the plaintiff’s intestate was indebted to the defendant, a hotel proprietor, in a sum in excess of $4,GOO. Three several notes were given, maturing at different dates, each for a third of the indebtedness. The notes, *508differently dated, had respectively three months, two months and one day to run. The last note matured some time in June, 1888. As collateral security for the payment of the notes the plaintiff’s intestate gave the defendant a large amount of personal property consisting of the furniture, bric-a-brac, books, ornaments, etc., of the suite of rooms occupied by him. In the month of July, 1888, one month after the maturity of the last note, he left the defendant’s hotel, leaving the personal property behind him. The notes have never been paid. Plaintiff’s intestate died in February, 1898, without ever having tendered payment of the notes or demanded the return of his property. The plaintiff was appointed administrator within a few weeks thereafter. Nothing was done until just prior to the commencement of this action on May 9, 1904, when the attorney for the plaintiff called on the defendant and was informed by him that the personal property, or a large part of it, had been sold or disposed of in or about the year 1900. .It appears that this sale was private, without notice to the plaintiff, as administrator of his father’s estate.

In form this action is for an accounting of the disposition of the proceeds of sale or of the goods remaining and for a judgment for the difference between the sum realized and the amount of the debt represented by the notes besides interest. I am of the opinion that the action cannot be maintained.

The record makes it plain that the transaction had in March, 1888, amounted to a pledge of the personal property and not to a chattel mortgage. Although the record contains some intimations that the latter form of security was given, the proof entirely fails to support the pleading in this particular.

It is unnecessary to discuss here the relative rights of pledgor and pledgee. They are fixed by a long line of cases. Cortelyou v. Lansing, 2 Caines Cas. 200; Roberts v. Sykes, 30 Barb. 176; Markham v. Jaudon, 41 N. Y. 235; Brown v. Bronson, 93 App. Div. 312. Title remains in the pledgor and the maturity of the obligation for which the pledge is given does not divest the title of the pledgor or enlarge that *509of the pledgee, nor does the fact that the Statute of Limitations has run against the debt bar the right of redemption of the collateral. After maturity the pledgee may on notice soil the security at public sale and apply the proceeds to the payment of the debt, but omitting that, he continues to hold in trust for the benefit of the parties interested. Jones Pledge, § 581. An unauthorized sale constitutes a conversion, and if in this case the right to redeem was not barred at the time of the sale by the defendant, the plaintiff would have his cause of action either in conversion or at his election in equity for an accounting.

The question, therefore, is, was the right to redeem barred ? Unless the plaintiff could redeem he cannot maintain this action.

There is an unquestionable conflict in the decisions and it would be profitless to attempt to reconcile them. Eollowing the language of the Code as to the limitation applicable and a very recent *dictum*of the Appellate Division (Brown v. Bronson, *supra),*I" conclude that both the six and the ten years’ limitation defeat the plaintiff’s remedy. Section 410 of the Code provides that “ Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time, within which the action must be commenced, must be computed from the time, when the right to make the demand is complete ” except in two cases which have no application here.

The notes not having been paid at maturity the plaintiff’s intestate before he could maintain an action to redeem or pursue any of the remedies flowing from that right was obligated to tender the amount of the indebtedness and demand the return of the property. The right to make that demand accrued on the maturity of the notes and not before. It then became complete. Even if there had been payment of the notes at that time and for some reason or other the property had not been returned after payment, the cause of action for the recovery of the collateral would have been barred within ten year's after the payment. This was the precise point determined in Brown v. Bronson, *supra. A fortiori*is the right barred in this case? The test is, was a *510demand necessary and when was the right to make the demand complete? The plaintiff had the absolute right to redeem; not having paid the notes at maturity, it required a demand on his part for the return of the property supported by a tender of the amount due. This right to make the demand was complete when the last of the notes fell due in June, 1888. Ho steps were taken until sixteen years after-, at a time when more than six and more than ten years had elapsed.

The case of Roberts v. Sykes, *supra*directly supports the conclusion reached. That case has been much distinguished, criticized, declared overruled and but recently rehabilitated. It is unnecessary to review the authorities, as that has been done in Brown v. Bronson. It may be said, however, that the foundation case on which criticism of Roberts v. Sykes has rested (Cȯrtelyou v. Lansing) announces a principle which renders it distinguishable both from Roberts v. Sykes and the case at bar. It declares, in effect, following eminent authority, that where the pledge is delivered without any specified time of payment or redemption, the pledgor has his whole life to redeem. While this ancient doctrine has not escaped criticism, it being said that “ modern prescription runs rather by lapse of years than the uncertain span of a human life” (Schouler Bailm. [3d ed.), § 250), it may be pointed out that in both the Roberts case and the present, the time of redemption, at least the inception of time of redemption, is fixed by the due date of the notes. In the Oortelyou case the security was given for an indebtedness that had matured several years before.

Independently of the statute, however, I believe equity ought to refuse cognizance of this claim on account of the staleness of the demand. *“*Equity will decline to entertain the pledgor’s bill for redemption if he or his representatives bring it unreasonably late; for the property will then be conclusively presumed to have vested in the pledgee, or, at least, duly disposed of.” Schouler, *supra,*§ 250. *“*Where the title of the pawnee has remained undisturbed for a great length of time, it seems that such an extraordinary prescription may be insisted on as a bar, for the sake of the repose *511of titles founded on long possession.” Story Bailm. (9th ed.), § 348. And see Jones Pledge, § 581 *et seq.*

The case at bar well illustrates the wisdom of this docrj trine on the one hand as on the other the effect of the Statute of Limitations as one of repose. The pledgor died more than ten years after having left his personal belongings behind him as security without ever having taken any steps to recover them, or, so far as the record indicates, having ever intimated that he would do so. For six years after his death his administrator sits idle. Sixteen years after the original transaction witnesses the first attempt to assert any rights. Nor are we to ignore the nature of the property. Though much of it was perhaps not perishable in the strict sense of that term, it was yet liable to depreciation and to deterioration by use. Change of fashion and use and the danger of destruction are also proper elements to be considered. It looks very much like an abandonment.

On the whole case I think there should be judgment for the defendant.

Judgment for defendant.