The main question in the case is whether the trial court erred in holding that the Statute of Limitations was a bar to the claim of plaintiff.
In Mills v. Mills (115 N. Y. 80) the rule was laid down that where money is received by one to and for the use of another under such circumstances that it is his duty at once to pay it over, then an action for money had and received may be brought to recover it without any demand; and that in such a case the Statute of Limitations begins to run from the day of the receipt of the money, and that this result would not be-affected by the fact that an accounting was necessary in order to determine the amount. This rule was applied in Wood v. Young (141 N. Y. 211) to the case of a party collecting money by virtue of a power of attorney, and it was said that the law imposed an obligation upon the agent to pay over the money as soon as received or at léast within a reasonable time, and that an action was maintainable by the owner for its recovery with*361out any demand before suit. This rule would seem to be applicable to the facts of this case as shown at the trial, so far as they "tended to show that the defendant’s testator had received . moneys belonging to the plaintiff’s assignors. As said in the Wood case, there was nothing in the circumstances under which the moneys came to the hands of the testator from which the right or duty should be implied to hold these until actually called for by. the owners. Nor are any circumstances shown rendering it necessary for plaintiff to resort to equity for relief. If there, are concurrent remedies in equity and law, the action would be subject to the limitation at law. (Roberts v. Ely, 113 N. Y. 128, 133.)
If no demand was necessary, then it is not necessary to consider the question raised by the plaintiff under the provision of section 410 of the Code of Civil Procedure.
The last transaction or receipt of. money under the power of attorney was, so far as the proofs show, on the 28th of June, 1884. From that date more than eleven years and six months elapsed before the commencement of this suit. Clearly the action was barred unless, as the plaintiff claims, the pendency of the proceedings in the Surrogate’s Court for the settlement of the personal estate of the testator ITodgman, or the acts or conduct of the defendant in those proceedings, changed the situation to the benefit of the plaintiff.
The proceedings in the Surrogate’s Court were not instituted by the assignors of the plaintiff. They were defendants therein. There was nothing in those proceedings to prevent them from asserting at any time in* the proper forum any remedies they had as to the proceeds of the real estate. The surrogate had no power to pass on the transactions between them and Hitchcock under the power of attorney. (Matter of Hodgman, 11 App. Div. 344.) It is not apparent that the insertion by the defendant, in his first account, of the items as to the real.estate influenced in any way the assignors of plaintiff to delay affirmative action on their part.
It is urged by the plaintiff that the verified account filed by the defendant June 26, 1890, is a sufficient written acknowledgment or promise to take the case out of the operation of the statute. (Code, § 395.) The recitals as to Schedule B of that account, hereinbefore *362quoted, are relied on as showing such acknowledgment. That professes to state certain real estate items as received by the testator ten years and upwards before, as the accountant finds them in data which have come to his hands. The whole account is not in the record: There is no statement that; there is anything due the residuary legatees or devisees. The inference is to the contrary. There is no. recognition of an existing debt. In the amended account which, as it may.be inferred, is substantially the same as the former, one, except the,specified real estate items, there is a balance claimed to be due to the Hitchcock estate,of more than the real estate items, and there is also a specific statement of a settlement prior to 1882 of the claims represented by the plaintiff.
To constitute an acknowledgment of a debt,, such as will take it out of the statute, the writing must acknowledge an existing debt and must contain nothing inconsistent with an intention on the part of the debtor to pay. (Manchester v. Braedner, 107 N. Y. 346.) It has been held that an executor can, neither by his promise or acknowledgment, oral or written, revive a debt against the estate of his testator already barred by the statute. (Bloodgood v. Bruen, 8 N. Y. 362; Butler v. Johnson, 111 id. 204.) In Schutz v. Morette (146 N. Y. 137) it was held that an acknowledgment of a debt by an executor will not, in the absence of an express promise to pay, take the case out of the statute.
The date of the last real estate item in the account of ' 1890 was May 6, 1879, more than eight years before. Hitchcock’s death.
It seems to me reasonably clear that no sufficient acknowledgment or promise is shown to. relieve the plaintiff from 'the effect of the statute or, any facts which operate to estop, the defendant from pleading the statute in behalf of the estate he represents.
It follows that the judgment should be affirmed.
All concurred.
Judgment affirmed, with costs. ,