Allen v. Trisdorfer — 14 N.Y. St. Rep. 694

Majority

p. 694

Horatio P. Allen, App’lt, v. Henry Trisdorfer, Resp’t.^[1]

(New York Court of Common Pleas, General Term,

Filed February 6, 1888.)

Headnote

Statute of limitations—Unconditional acknowledgment of debt, AND PROMISE TO PAT MADE BY DEBTOR TO CREDITOR IS SUFFICIENT TO STAY THE OPERATION OF.

An unconditional acknowledgment of a debt, and promise to pay the same when able, made by a debtor in a letter to his creditor, is sufficient ■ to stay the running of the statute of limitations, and its effect is not nullified by the fact that the letter was written before the action on the debt had become barred by operation of the statute.

Wager & Acker, for app’lt; Allen, Talmadge & Allen, for resp’t.

This case having been so thoroughly discussed and examined in the court below, it seems unnecessary to do more than state the conclusion reached by the court upon this appeal.

The rent sued,for was due AprilT, 18Y9. The suit for its recovery was not commenced until August 23, 1886. The statute of limitations was interposed as a defense, and the sole question to be decided is whether or not the following letter, written and sent by the defendant to plaintiff’s agent, takes the case out of the operation of section 395 of the Code of Civil Procedure:

“New York, March 3, 1881. “Aug. H. Allen, Esq., 320 Broadway.

“ Dear Sir—Yours of the 24th inst. came to hand, and in reply would say, that when I made you the promise, I honestly intended, and still do intend, to pay you amount due, but I trust you will believe me when I tell you it was utterly impossible, up to this time, to do so, and can only again say that I will pay you as soon as I possibly can. Of course, if you wish to sue me, I cannot prevent you, as the. claim is just, but I fail to see that you will be paid any sooner by that method, as I do not dispute your claim.

‘ Hoping you will have a little more patience, and that you may soon hear from me,

^[1] “I remain yours truly,

“H. Trisdorper.”

p. 695

We think the letter in question explicitly shows an unqualified acknowledgment in writing of the existing debt as well as an unconditional promise to pay the same. It has the same effect as if the defendant, on March 3, 1881, had given his note of hand to pay the debt. The fact that the acknowledgment and promise was made prior to the expiration of the six years’ limitation of the statute, cannot destroy the legal effect of such acknowledgment and promise. The letter of March 3, 1881, added nothing and could not have increased the liability of the defendant then existing. Its evident intention was to secure to the plaintiff the ultimate recovery of his debt.

We have examined the authorities cited upon the brief of the counsel for the defendant, and find in each case the acknowledgment and promise were conditional in character and result.

The case at bar is not within the line of those authorities. As before stated, it is not necessary to review them in detail.

We have reached the conclusion that the judgment of the general term should be reversed with costs, and that of the special term affirmed; and that upon the stipulation given, judgment absolute is hereby ordered against the defendant.