Camp v. Smith — 45 N.Y. St. Rep. 331

Majority

p. 331

Fletcher W. Camp, Adm’r, App’lt, v. James W. Smith et al, Resp’ts.

(Supreme Court, General Term, First Department,

Filed March 31, 1892.)

Headnote

■Limitation—Payment—Application of.

Where it appears that there were other existing and valid obligations between the parties, a payment made generally "will not be assumed to have hem made upon any particular claim so that such claim will be taken out of the bar of the s;atute of limitations.

Appeal from judgment entered upon verdict directed by the court.

W. Mitchell, for app’lt; E. H. Pomeroy, for resp’ts.

It does not appear from the record in this case that any evidence tending to show that the defendants had made any payments on account of the notes involved in this action was offered by the plaintiff and excluded by the court.

All of the evidence offered was admitted except the testimony as to the amount of interest upon certain payments which the plaintiff claimed should be applied by the court to the notes in suit. We have examined the testimony and cannot find any evidence which would justify the finding that the payments in question were payments on account of the notes in suit. The most that can be said is that they were payments made generally by the defendants to the plaintiff. But as it appears that at the time the payments were made there were other existing and valid obligations of the defendants to the plaintiff’s testator, the court cannot assume that payments made generally were made upon any particular claim so that that claim will be taken out of the bar of the statute of limitations. We think it clear that the notes in suit were barred by the statute, and that the direction of a verdict in favor of the defendants was right and should be affirmed, with costs.

Van Brunt, P. J. and Ingraham, J., concur.