present Civil Code it was held that, to revive a demand barred by the statute, there must be an express promise to pay, either absolute or conditional, or an acknowledgment oí the debt as subsisting, made under such circumstances that such a promise may be fairly implied. Wakeman v. Sherman, 9 N. Y. 91 ;
Bloodgood v. Bruen, 8 N. Y. 362 ; Sands v. Gelston, 15 Johns. 519 . Under said Codes the same acknowledgment has been held necessary to take a case out of the operation of the statue of limitations, as before, except that the acknowledgment must now be in writing. Shapley v. Abbott, 42 N. Y. 447 . The check, however, which the plaintiff claims is a sufficient acknowledgment in writing to save his claim, appears by the evidence to have been tendered "by the defendant in the way of a compromise. Defendant testified that he told plaintiff when he tendered the check that it was more than he (defendant) owed him (plaintiff.) This is not contradicted; plaintiff testifying that defendant did state, “It is more than I owe you.” It does not appear how much greater defendant claimed the amount of the check was than the sum for which, in fact, he was indebted to plaintiff. It seems, therefore, that the amount due plaintiff . was in dispute. The check was offered in the way of a compromise, for less than the amount claimed by plaintiff, and more than defendant conceded due, and hence was not such an unqualified acknowledgment of the debt as required by the authorities. Allen v. Webster, 15 Wend. 288 , 289; Sands v. Gelston, 15 Johns. 514 ;
Creuse v. Defiganiere, 10 Bosw. 122 . It is also doubtful whether, under the circumstances, the check can be deemed “a writing,” within the meaning of section 395, supra. It was offered by defendant to plaintiff, but not received, and hence never had any legal inception or delivery. It was the same as if the defendant, after writing the check, had left it in his check book. Many . cases might be cited where debts have been revived by letters or writings delivered to the creditor or his agent, and, in certain cases, to third persons. But my attention has not been called to any authority holding that a check or paper written, but never delivered to either the creditor, or any other person,—a paper that never had any legal inception,—was “a writing,” within section 395, supra. In Defreest v. Warner, 30 Hun, 94 , the written acknowledgment was contained in a deed delivered to, and accepted by, the grantees. In
Manchester v. Braedner, 107 N. Y. 346 , 14 N. E. Rep. 405 , the defendant delivered to" the plaintiff orders on third persons,— as if, in this case, the check had been delivered to and retained by plaintiff. In McCahill v. Mehrbach, 37 Hun, 304 , the defendant sent a letter to the plaintiff, acknowledging the debt. In Morrow v. Morrow, 12 Hun, 386 , the executor inserted in the inventory sworn to by him, and filed with the surrogate, a note he had theretofore executed to his testator. In Anderson v. Sibley, 28 Hun, 16 , the parties executed an agreement to arbitrate, and on such arbitration to waive the statute of limitations. The defendant afterwards revoked the arbitration. Many" other similar cases might be referred to. In all that I have examined, the letter,