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AMERICAN SUR. CO. v. GAINFORT

May 3, 1954

AMERICAN SURETY CO. OF NEW YORK
v.
GAINFORT et al.



The opinion of the court was delivered by: CONGER

This suit was tried without a jury upon seven claims for relief. The first six involve judgments obtained in California while the seventh involves fraud of creditors.

All the evidence in the case was documentary.

 The following judgments were established:

 June 13, 1935, Superior Court, County of San Francisco, in favor of S. Heyman against J. H. Gainfort in the sum of $ 2,220 with interest etc.

 June 14, 1935, Superior Court, County of San Francisco, in favor of J. L. Dunscomb against John Gainfort et al. in the sum of $ 6,329 with interest etc., nunc pro tunc as of June 30, 1930.

 May 25, 1925, Superior Court, County of San Francisco, in favor of San Francisco Hotel against J. H. C. Gainfort in the sum of $ 489.78 with interest etc.

 May 9, 1925, Superior Court, County of San Francisco, in favor of Emma L. Hume against J. H. C. Gainfort in the sum of $ 9,516.97 with interest etc.; partially satisfied to extent of $ 830.58.

 September 21, 1927, Superior Court, County of San Francisco, in favor of Lewis P. White against John H. C. Gainfort in the sum of $ 558.50 with interest etc.

 October 4, 1929, Superior Court, County of San Francisco, in favor of Lewis P. White against John H. C. Gainfort and Isabel [sic] Gainfort in the sum of $ 782.10 with interest etc.

 There is no question that the defendant John H. C. Gainfort is the same person against whom all of the foregoing judgments were entered. The defendant Isabelle Gainfort was not served with process in this action.

 It is undisputed, and documents establish, that each of the judgments, except that in favor of the San Francisco Hotel, was assigned to one Caroline Parish at various times and reassigned by Caroline Parish to the plaintiff on July 19, 1940. Although the amended complaint alleges the assignment of the San Francisco Hotel judgment to Caroline Parish, there is no document nor other proof in support of the allegation, so that it is impossible to find that plaintiff is the owner of this judgment.

 The sole defense of John H. C. Gainfort to these claims, aside from the plaintiff's lack of title to the San Francisco Hotel judgment, is the statutes of limitations of California and/or New York.

 Section 13 of the New York Civil Practice Act provides in part as follows:

 
'Where a cause of action arises outside of this state, an action cannot be brought in a court of this state to enforce such cause of action after the expiration of the time limited by the laws either of this state or of the state or country where the cause of action arose, for bringing an action upon the cause of action, except that where the cause of action originally ...

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