Allen v. Trisdorfer — 25 N.Y. St. Rep. 754

Majority

p. 754

Horatio P. Allen, Pl’ff-App’lt, v. Henry Trisdorfer, Def’t-Resp’t.

(New York Common Pleas, General Term,

Filed April 1, 1889.)

Headnote

1. Statute of limitations—Acknowledgment of debt.

A clear acknowledgment of the debt, by the defendant in writing,which is not coupled with the conditional promise to pay in the same writing, but is wholly distinct from the promise, entitles the plaintiff to recover.

2. Same.

There may he, in the same writing, an acknowledgment and a promise, and if they are distinct, and must be so read, the acknowledgment will support a present action, notwithstanding the promise is conditional. If the promise were coupled with the acknowledgment, it would be otherwise.

Motion for reargument. For opinion on appeal see 14 N. Y. State Rep., 694.

Wager & Acker, for pl’ff-app’lt; Allen, Talmadge & Allen, for def’t-resp’t.

The writing signed by the defendant contained an acknowledgment of the debt wholly independent of the promise to pay, and not coupled with such promise. After saying that he honestly intended and still does intend to pay plaintiff the amount due him, but that he trusts that plaintiff will believe him when he tells him that it was utterly impossible up to that time to do so, and that he can only say again that he will pay as soon as he possibly can, defendant goes on to say: “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.”

It is evident from this latter part of his letter that defendant wishes to make an acknowledgment of the justice of the claim wholly distinct from his promise to pay it, and upon such independent acknowledgment the plaintiff was entitled to recover. There may be in the same writing an acknowledgment and a promise, and if they are distinct and must be so read, the acknowledgment will support a present action, notwithstanding the promise is conditional. If the promise were coupled with the acknowledgment, it would be otherwise.

The motion should be denied, with ten dollars costs.