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Wheeler v. Simmons

15 N.Y.S. 462 Court N.Y. Gen. Term Decision date 1891-07-02 English

Delivered by Pratt, J.

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p. 462
Wheeler v. Simmons.
(Supreme Court, General Term, Second Department.
July 2, 1891.)

Headnote

¿Bankruptcy—Revival oe Debt—Payments.
A debt from which the debtor "has been discharged in bankruptcy cannot be revived by partial payments, or anything short of an express and distinct promise of payment. Lawrence v. Harrington, 188 M". Y. 408, 85 N. E. Rep. 406 , followed.
p. 463
Appeal from special term, Dutchess county.
Action by Cornelia Wheeler against E. W. Simmons. From a judgment for plaintiff, defendant appeals.
Argued before Dykman and Pratt, JJ.
W. Farrington, for appellant. Collins Sheldon, (S. H. Brown and John Hackett, of counsel,) for respondent.

This action was commenced July 5, 1890, upon a promissory note for $2,000, dated September 22, 1874. The answer set up the statute of limitations and a discharge in bankruptcy, dated 12th day of February, 1879, which discharged the defendant from all debts existing on the 4th of September, 1877. Several payments had been made upon the note from January 9, 1879, up to 1886. These payments were relied on to take the case out of the statute of limitations, and the court found ás a fact that these, having been made prior to the statute of this state, passed June 8, 1882, constituted a new promise, and, as matter of law, that the claim was not barred. There is no evidence to sustain a new promise except the payments, and therefore the question is clearly raised whether a payment after a discharge in bankruptcy revives the debt. This question has been recently passed upon by the court of appeals in the case of Lawrence v. Harrington, 122 N. Y. 408 , 25 N. E. Rep. 406 , where it was held that a promise by which a debt is discharged in bankruptcy can be renewed must be an express and distinct promise, and that such a promise cannot be implied from merely proof of partial payments. The finding of fact in the present case has no evidence to support it except the payments. It follows that the judgment must be reversed, and a new trial granted, costs to abide the event.

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