bar to any claim in New York

1941Moreover, the courts have established the rule that “ unless the facts, upon which the running of the Statute of Limitations depends are clear and uncontroverted, mere lapse of time is not a bar to the accounting, and that the question as to whether the Statute of Limitations is a bar to any claim made by the petitioners should not be decided before the accounting is had.” (Matter of Ashheim, 111 App. Div. 176 .) The petitioner herein, therefore, is entitled to an order which shall provide first for the denial of the respondent’s motion to dismiss, and then for a reopening of the decree of jud

1908In Matter of Ashheim, supra, the rule was laid down that, unless the facts upon which the running of the Statute of Limitations depended were clear and uncontroverted, mere lapse of time is not a bar to the accounting; and the question as to whether the Statute of Limitations is a bar to any claim made by the petitioner should not be decided before the accounting is had.

1931(Matter of Irvin, 68 App. Div. 158 ; Matter of Jones, 51 id. 420.) “ We have also in the interest of honesty extended the rule by analogy to the case of executors who are trustees in a sense, even though they be not, strictly speaking, trustees; and we have established the rule that unless the facts, upon which the running of the Statute of Limitations depends, are clear and uncontroverted, mere lapse of time is not a bar to the accounting, and that the question as to whether the Statute of Limitations is a bar to any claim made by the petitioners should not be decided before the accounting is

1906(Matter of Irvin, 68 App. Div. 158 ; Matter of Jones, 51 id. 420.) We have also in the interest of honesty extended* the rule by analogy to the case of executors who are trustees in a sense,.even .though they be not, strictly speaking, trustees; and we have established the rule that unless the facts, upon which the running of the Statute of Limitations depends, are clear and uncontroverted, mere lapse of time is not a bar to the accounting, and that the question as to whether the Statute,of Limitations is a bar to any claim made by the petitioners should not be decided before the accounting is

1917In Matter of Bloomfield v. November ( 219 N. Y. 374 ) it was held that if the circumstances are such as to justify failure to serve the notice, the fact of such circumstances should be set forth by the Commission as one of the facts constituting the basis of the award, and that the Commission should make apparent the ground upon which it excuses the failure to serve notice.

1916After specifying the details of the notice and the manner in which it may be given, the section concludes as follows: “The failure to give such notice, unless excused by the Commission either on the ground that notice for some sufficient reason could not have been given, or on the ground that the State fund, insurance company, or employer, as the case may be, has not been prejudiced thereby, shall be a bar to any claim under this chapter.” In Matter of Bloomfield v. November ( 219 N. Y. 374 ), decided by the Court of Appeals December 12, 1916, that court had under consideration the requirement

1896(Coon v. Knap, 8 N. Y. 402 .) The transaction amounted to an accord and satisfaction.

1896Coon v. Knap, 8 N. Y. 402 .

1986(Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377 ; Corinno Civetta Constr.

1984K A claimant’s cause of action accrues when the claimant should have viewed his claim as having been rejected (Memphis Constr. v Village of Moravia, 59 AD2d 646 ).

1976In interpreting section 341-b of the former Village Law (now in its substantial language CPLR 9802) it has been held that the failure on the part of a party to comply with the said section is an affirmative defense to be raised in an answer of a defendant and does not constitute a condition precedent to be included in the complaint (Caruso v Incorporated Vil. of Sloatsburg, 35 AD2d 988 ; O’Connell Elec.

1951If the provisions of the separation agreement are wholly inconsistent with the terms and nature of the bequests in the will for the former wife’s benefit, the separation agreement operated as a revocation of the testamentary provisions for the former wife (Decedent Estate Law, §§ 39, 40) and a bar to any claim of the former wife to take under the will (Matter of Loeb, 155 Misc. 863 ).

1941(See Schenker v. Village of Liberty, 261 App. Div. 54 .) In accordance with the foregoing, plaintiff’s' motion to serve a supplemental complaint is denied, with motion costs of ten dollars to the defendant village.

1933The decree settling the trustees’ account for the period from 1886 to 1920 is final as to matters embraced therein (Matter of Barrett, 124 Misc. 699) and is a bar to any claim of surcharge of the old trustees because of shrinkage in value of securities prior to that decree.

1931(Matter of Irvin, 68 App. Div. 158 ; Matter of Jones, 51 id. 420.) “ We have also in the interest of honesty extended the rule by analogy to the case of executors who are trustees in a sense, even though they be not, strictly speaking, trustees; and we have established the rule that unless the facts, upon which the running of the Statute of Limitations depends, are clear and uncontroverted, mere lapse of time is not a bar to the accounting, and that the question as to whether the Statute of Limitations is a bar to any claim made by the petitioners should not be decided before the accounting is

1915The cases of Cutter v. Mayor, etc. of N. Y. ( 92 N. Y. 166 ) and Grote v. City of New York ( 190 N. Y. 235, 237 ) are relied upon in support of these propositions.

1915The cases of Cutter v. Mayor, etc. of N. Y. ( 92 N. Y. 166 ) and Grote v. City of New York ( 190 N. Y. 235, 237 ) are relied upon in support of these propositions.

1913This release it is conceded operated to discharge the city from all further liability by reason of the cause of action alleged in her complaint; and would equally be a bar to any claim dependent upon that injury, or her death resulting therefrom, which could be made after her death by her personal representative. “ Where the release contains no reservation it operates to discharge all the joint tort feasors; but where the instrument expressly reserves the right to pursue the others it is not technically a release but a covenant not to sue, and they are not discharged.” (Gilbert v. Finch, 173 N

1906(Matter of Irvin, supra; Matter of Meyer, 98 App. Div. 7 ; affd., 181 N. Y. 553 .) In these, cases we reviewed the principal authorities upon which the appellant relies, and it is not necessary to distinguish them again.

1906(Matter of Irvin, supra; Matter of Meyer, 98 App. Div. 7 ; affd., 181 N. Y. 553 .) In these, cases we reviewed the principal authorities upon which the appellant relies, and it is not necessary to distinguish them again.

1889In Hopf v. Myers, supra, (at pages 272, 273.) the rule is well stated as follows: “A suit brought for one portion of a demand, or for one of several demands arising out of the same contract or transaction, is a bar to a subsequent suit for the residue of such demand or demands, if they were all due when such suit was commenced; and the rule is the same where the first suit includes all the demands, though only a portion of them are therein litigated, or though a part be withdrawn.” Hence the judgment in the action brought by Emeline was a bar to any claim by her for the articles and provisions

1881This proposition was assented to by the plaintiff, and it resulted in the case of Schiffer v. Pruden (reported in this court in 64 N. Y. 47 ).