Kahrs v. City of New York

“ Upon these admissions plaintiff was clearly entitled to the judgment asked for in his complaint.” Folio 11 refers to the complaint that “ there is now due and owing thereon from the defendant to this plaintiff the sum of $68.21, with interest thereon from January 1st, 1896,” and, “ Sixth. That in and by the provisions of Chapter 378 of the Laws of 1897, and the several acts amendatory thereof and supplementary thereto, known as ‘The Greater Yew York Charter,’ the said City of Yew York, the defendant herein, assumed and became obligated to pay the valid debts existing against the said former Long Island City, among which was and is this claim.” Folio 15 refers to part of the answer, which reads: “ It denies that it has any knowledge or information sufficient to form a belief as to any of the allegations contained in the paragraphs of the complaint marked ‘ Third,’ ‘ Fourth,’ and ‘ Fifth,’ and the allegation contained in the paragraph marked ‘ Sixth,’ that the claim set forth in the complaint was and is a valid debt, existing against the former Long Island City, and now existing against The City of Yew York.” Folio 36 refers to the trial, whereof the record reads: “ Defendant’s Counsel — We admit all the allegations contained in the complaint of the plaintiff in this action. The only question is, is the claim set forth in said complaint outlawed? We claim it is. Plaintiff’s Attorney — I admit that this action was commenced on May 15th, 1902. A jury trial was thereupon waived by both parties in open court, and it was agreed between counsel for both sides that the only question in the case was whether, as a matter of law, the cause of action set forth in plaintiff’s complaint herein accrued more than six years prior to the commencement of this action.” Thus it is seen that the defendant denied the material allegations of the complaint and it is clear enough from the context that the admission in the record was simply designed to dispense with the formal proof of the facts. The record shows that both parties thereupon agreed that the only question was that of law, namely, the application of the Statute of Limitations, and it cannot be presumed that theretofore and almost in the same breath, the defendant had admitted absolute liability, despite the statute. But even assuming that the defendant acknowledged the debt, that is not enough to preclude it from its defense. In Danforth v. Culver ( 11 Johns. 146 ) the court say: “ The evidence to take this case out of the statute is, that

the defendant, when the notes were shown to him, ‘admitted that he executed them, but observed that they were outlawed, and that he meant to avail himself of the statute of limitations.’ Even if we were to admit the authority of all the adjudged cases on the point, in the English courts, we should not think this to be such an acknowledgment of .the debt as would authorize the jury to presume a new promise. It was for a long time held in England that an acknowledgment of a debt, without a promise to pay, was not enough to deprive the defendant of the benefit of the statute. * * * In the case of Jones v. Moore ( 5 Bin. Rep. 573 ) the counsel for the defendant, arguendo, observed, that ‘if an acknowledgment operated by revival of the original debt, then it would answer, though accompanied by an express refusal to pay, which was contrary to the opinion of the present chief justice, in Murray v. Tilly, and of Judge Washington in Reide v. Wilkin son..’ Tilghman, Ch. J., in the same case says : ‘When the defendant iileads non assumpsit infra sex annos, and the plaintiff replies assumpsit imfra sex annos how can the issue be found for the plaintiff without proof of a promise, express or implied, within six years ? ’ And Yeates, J., says : ‘ Where it ’ (the acknowledgment of the debt) ‘ is accompanied by circumstances or declarations, that the party means to insist on the benefit of the statute, no promise can possibly be implied, without violating the truth of the case, and so it has been decided.’ ” This case is cited in Allen v. Webster ( 15 Wend. 284 , 288); Bridge v. Johnson (5 id. 342, 352 ). (See, too, Purdy v. Austin, 3 Wend. 187 ; Sands v. Gelston, 15 Johns. 511 , 519.) The Statute of Limitations affects the remedy. (Waltermire v. Westover, 14 N. Y. 16 , 20.)

The case is not within the rule of Coster v. Mayor ( 43 N. Y. 399 ) and the other cases cited with it. In Ooster's case the city assumed the liability of the State, and covenanted to pay and to indemnify (pp. 409, 411). There has been no voluntary act of assumption or any covenant on the part of the defendant to pay this obligation and none is to be implied whereby any new contract relation arose between the plaintiff and the city of New York so that the city could not avail itself of the defense interposed in this action. Practically, consolidation worked no hardship upon the plaintiff, for the valid debts of Long Island City remained the valid debts of the

city of Yew York, as if consolidation had not been. We gather from the pleading that the debt became due on December 31,1895. The liability was continued and cast upon the city of Yew York, and there remained for four years, during which time this defense would not have availed this defendant.

The judgment should he affirmed, with costs.

All concurred.

Judgment affirmed, with costs.