Frank v. Brewer — 26 N.Y. St. Rep. 590

Majority

p. 590

Abraham Frank, Resp’t, v. Sarah J. Brewer, Sole Executrix, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October 19, 1889.)

Headnote

1. Evidence — Letters of third persons written long prior to controversy NOT ADMISSIBLE.

Letters of third persons written long prior to the controversy in question form no part of the res gistce, and it is not error to exclude them.

S. Limitation — Statute begins to run against accommodation maker FROM TIME OF PAYMENT BY HIM.

Plaintiff signed a note with defendant’s testator, as an accommodation for the latter, and was afterwards compelled to pay the same. Held, that the statute of limitations began to run against his claim for reimbursement only from the time of the payment by him.

Appeal by the defendant from a judgment rendered unon a verdict of a jury at the Erie circuit in December, 1888.

A. C. Calkins, for resp’t; Tracy C. Becker, for app’lt.

This action is brought to recover the sum of $125, which was paid by the plaintiff on the 3d day of June, 1880, upon a certain promissory note made by the defendant’s testator and one Christian Miller, and the plaintiff. The reason for the recovery is stated to be the fact that the plaintiff was an accommodation maker only, for the benefit of the defendant’s testator, Robert McClure.

These persons, Robert McClure, Christian Miller and the plaintiff, Abraham Frank, made a promissory note on the first day of May, 1877, in the sum of $350. The holder of the note procured judgment thereon May 10, 1878, against the makers Miller and Frank. On the 29th day of July, 1880, Frank, the plaintiff,

p. 591

paid, on such judgment the sum of $125, being a compromise o£ his agreement, and was released from the judgment.

The matter of contention at the trial was whether the plaintiff, had signed the note in question wholly for the benefit of Robert McClure. The evidence upon this question consists of testimony of several witnesses, and the same was submitted to the jury under an elaborate charge. Upon the testimony adduced the jury were justified in the verdict rendered by them.

The main ground of this appeal consists in the alleged error of the trial court in excluding certain letters which were written by one Conger and Robert McClure in the year 1876. There is evidence to show that at the time the controversy between the parties to this action arose these letters were produced and their contents urged against the claim of the plaintiff. While it would not have been error to receive these letters as a part of the conversation between the parties, yet, under the circumstances disclosed, their exclusion does not appear to be erroneous. They were the declarations of third persons written at a time long prior to the controversy, and could not, in any view of the case, be deemed res gestee.

The only other question in the case is that of the statute of limitations. Though more than six years had elapsed between the time of the making of the note and the time of the beginning of the action, yet, it was less than six years between the time of the payment by the plaintiff and the beginning of this action. It is very clear that the cause of action accrued only at the time of the payment by the plaintiff, which was July 29, 1880, and that the statute of limitations ran only from that time. Baker v. Cassidy, 16 Barb., 177 ; Butler v. Wright, 20 Johns., 367 .

In the notice of appeal we observe an attempt is made to review an order of the special term allowing the plaintiff to recover costs and disbursements. The order and the papers upon which it was granted do not appear in the printed case before us. Consequently we cannot review the order. In the absence of such papers a strong presumption arises that the costs which appear in the judgment were properly awarded against the estate represented by the defendant, either upon the ground that she unreasonably resisted or neglected payment of the claim, or, that she refused to submit the same to a referee under the statute. Sections 1835 and 1836 of the Code of Civil Procedure.

The judgment and order should be affirmed, with costs.

Barker, P. J., and Dwight, J., concur.