(dissenting):
A motion was made at Special Term by the defendants to dismiss plaintiff’s complaint on the ground that the action was barred by the Statute of Limitations. This is an appeal from the order granting that motion.
The complaint alleges that the respondents are members of the New York Stock Exchange, and, between May 7, 1903, and July 9, 1908, plaintiff paid to them or their predecessors, whose obligations they assumed, $12,550 to be invested for her account
*765This action to recover the amount so paid was commenced by the service of the summons and complaint on the 13th day of May, 1924.
The amended complaint alleges that plaintiff “ paid to said copartners said moneys, and then and there constituted the said James M. Leopold & Co., her true and lawful agents in the premises, and implicitly trusted in and relied upon them; ” that since 1916 she has repeatedly demanded an accounting; and that the respondents have refused and still refuse to render to her any accounting. The above allegation is an allegation of agency.
The plaintiff contends that this is an action in equity for an accounting and that the ten-year Statute of Limitations (Civ. Prac. Act, § 53) is applicable to it. Against this it is said that the action is for money had and received and an accounting; and that, there being no true relationship of trustee and cestui que trust between the parties, there being solely a contractual relationship, the six-year Statute of Limitations applies. “ An action upon a contract obligation or liability express or implied, except a judgment or sealed instrument ” is to be commenced within six years. (Civ. Prac. Act, § 48.)
The appellant also contends that this is not such a case as subdn vision 1 of section 15 of the Civil Practice Act refers to; but that it comes within subdivision 2 of section 15 of the Civil Practice Act.
That the plaintiff seeks an account of the moneys received or that she might have a right to such an accounting does not prevent the application of the Statute of Limitations which applies to an action to enforce a contractual obligation.. In Middleton v. Twombly (125 N. Y. 520) it is said (at p. 524): “ The right of the plaintiff to recover this asset is based upon the obligations of the partnership agreement and a promise, to be implied from the circumstances of the case, to pay it. The dissolution of the firm, leaving this asset unaccounted for, under the circumstances, worked no bar to an action by the plaintiff to recover it. It is entirely immaterial whether the action brought is for an accounting as to the particular asset; or an action for money had and received; or upon an implied trust, the rule of limitation applicable thereto in the absence of special circumstances, not appearing in this case, is that of six years. (Roberts v. Ely, 113 N. Y. 128.) ”
In Mills v. Mills (115 N. Y. 80) the court said: “Even if an accounting was necessary to determine the amount due from him to his brother, the account could be taken in an action at law as well as in an action in equity; and in whatever form the action was commenced the legal rule of limitations would be applicable. * * * All the relief asked for in the complaint is an accounting *766and a judgment for a sum of money, and no other relief was needed or possible upon the facts established. This was in no sense an action to redeem, as there was no mortgage and nothing to redeem.”
A trust was not declared by plaintiff, for according to her allegations those with whom she dealt took the money as her agents to invest it.
Contractual relationships frequently are such as to imply trust and confidence on the one side and loyalty and accountability on the other. Though the relation between principal and agent is of this kind, and though the agent may be required to account to his principal, the agent’s obligation is nevertheless a “ contract obligation or liability ” within the meaning of section 48 of the Civil Practice Act.
In Matter of Waite (43 App. Div. 296) the court said (at pp. 301, 302): “ Under no conceivable circumstances can the Statute of Limitations be avoided in a suit by a principal against an agent when the cause of action accrued seventeen, or sixteen, or' any number of years more than six prior to the commencement of the action. The cause of action against an agent accrues at the time the money of the principal is received and ought to have been paid over or applied to the use of the principal; no demand is necessary. (Carr v. Thompson, 87 N. Y. 160; Mills v. Mills, 115 id. 80; Middleton v. Twombly, 125 id. 520; Wood v. Young, 141 id. 211; Yates v. Wing, 42 App. Div. 356.) * * *
“ The referee says a trust or agency may be inferred from the acts of the parties. It is unimportant whether the relations of the parties be termed a trust or an agency, as the trust arising out of an agency is not such as to prevent the running of the statute, (Budd v. Walker, 113 N. Y. 637; Mills v. Mills, 115 id. 80, 86.) ”
In Rundle v. Allison (34 N. Y. 180, 183) the court said: " The six years’ limitation would therefore apply to the present case, were it not for some special circumstances which prevent the plaintiff from maintaining an action at law. * * * By reason of these peculiar circumstances, the plaintiff had no remedy at law, and the limitation of six years is not applicable to the case.”
In the case of Brown v. Brown (83 Hun, 160; affd., 146 N. Y. 385) the court said: “ The relation which the law created between them was that of debtor and creditor, and not that of trustee and beneficiary.
“ There was neither trustee, trust fund nor beneficiary within the legal meaning of those terms. It was neither the intention nor contemplation of either party to create a trust, and the deceased was charged with no trust with respect to the money he received, *767either in its management or control. In the case of Kane v. Bloodgood (7 Johns. Ch. 90) Chancellor Kent said: ‘ The word trust is often used in a very broad and comprehensive sense. Every deposit is a direct trust. Every person who receives money to be paid to another, or to be applied to a particular purpose to which he does not apply it, is a trustee, and may be sued either at law, for money had and received, or in equity as a trustee, for a breach of trust.’ According to this principle, every lawyer who collects money for his client; in fact, -every one who receives money for another, holds the same in trust.
“ But such persons are not trustees of a subsisting trust in the sense in which that term is legally and properly employed. They receive money belonging to another, which, according to equity and good conscience, they are bound to pay over and they become debtors for the same.
“ It is true that persons receiving money in a fiduciary capacity are sometimes denominated trustees ex maleficio and trustees de son tort, but when such terms are applied they are employed only to designate those implied trusts which the law sometimes raises for purposes of justice, and to such trusts the ordinary rules of Limitation apply. The six years’ statute is applicable. (Mills v. Mills, 115 N. Y. 85.)”
In Mills v. Mills (supra), Judge Earl, writing for the court, said: “ The defendant. must always have known the amount of his loans and advances to his brother, and it was his duty to keep an account of his expenditures on account of the property transferred to him and hence he could tell when he had been fully reimbursed and the time came when he received moneys to and for the use of his brother under the obligation to make payment of them to him. Even if an accounting was necessary to determine the amount due from him to his brother, the account could be taken in an action at law as well as in an action in equity; and in whatever form the action was commenced the legal rule of limitations would be applicable. (Rundle v. Allison, 34 N. Y. 180; Carr v. Thompson, 87 id. 160; In the Matter of the Accounting of Neilley, 95 id. 382.) * * *
“It is said, however, that the defendant was in some sense a trustee of the moneys received by him, and hence that the Statute of Limitations could not begin to run in his favor until he repudiated the trust. But the defendant was not a trustee in the sense contended for. He had received money belonging to another and became a debtor for the same, and he is in no other sense a trustee than every one is who receives money to and.for the use of another. There was no actual express trust as to these moneys created by *768the act of the parties. It is certainly not true that every mortgagee is a trustee of an express trust and the relation of trustee and beneficiary does not exist between mortgagor and mortgagee. If the defendant was in any sense a trustee of the moneys received by him, it was simply an implied trust which the law would raise for the purposes of justice; and as to the liability growing out of such a trust the ordinary rules of limitations apply. (Kane v. Bloodgood, 7 Johns. Ch. 90; Lammer v. Stoddard, 103 N. Y. 672.)” (See, also, Wood v. Young, 141 N. Y. 211; Gilmore v. Ham, 142 id. 1, and Sheldon v. Sheldon, 133 id. 1.)
If the relationship was contractual and the six-year' Statute of Limitations applies, that period expired between the demand of 1916 and the commencement of this action in 1924, leaving nothing in section 15 of the Civil Practice Act on which plaintiff can rely. Her argument that subdivision 2 of said section applies, is based on her contention that a demand was a necessary preliminary to suit. But if she is suing to enforce a “ contract obligation ” we are not called upon to consider whether a demand was required, for over six years have elapsed since the demand was made.
The order should be affirmed, with ten dollars costs and disbursements.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to the defendants to answer within twenty days from service of order upon payment of said costs.