(dissenting):
This action was brought as for money had and received under the following circumstances: In June, 1916, plaintiff paid the defendant $294.80, under an agreement whereby defendant undertook to deposit the money in a bank in Vienna in the form of Austrian kronen and to return a bank book to the plaintiff. Plaintiff testified that he made several demands for the book, the last in September, 1918, and that the defendant had failed to carry out its agreement, and sued to recover his money back.
The serious question raised by the defendant is the application of the Statute of Limitations which, defendant urges, began to run a reasonable time after the money was originally paid in June, 1916. As, however, the record shows that plaintiff was willing to waive the date of performance and extend the time, at least as far as September, 1918, and defendant was manifestly willing to accept such extension, the time to bring this action did not begin to run until, at the very earliest, on the latter date. Consequently this action, begun April, 1924, was well within the six-year limitation. (See Bank of United States v. National City Bank, 123 Misc. 801.)
I think the judgment should be affirmed.
Judgment reversed.