Bender v. Blessing

This action was commenced by the service of a summons on the defendant April 17, 1892. The action was brought upon a promissory note for §240 dated May 3,1879, payable to the order of John L. Blessing, and signed by Martin J. Blessing, Thomas ITilme and John L. Blessing; and John L. Blessing and Martin J. Blessing were the only defendants named in the summons.

John L. Blessing alone answered, and by his answer denied the execution of the note, and, for a separate defense, set up the Statute of Limitations. The only real question on this appeal arises upon the defense of the Statute of Limitations.

On the trial the plaintiff introduced evidence tending to show that the note was given for money advanced at the time the note bears date to John L. Blessing, the appellant, and that he negotiated the loan of the plaintiff.

The plaintiff proved the execution of the note, and that the interest had been paid on it up to May, 1891, but did not prove by whom the payments of interest were made.

The defendant introduced in evidence eight vouchers for interest purporting to have been paid by Martin J. Blessing, and signed by

There is no proof in the case that the defendant, John L. Blessing, ever paid or authorized the payment of any interest on this note. At the conclusion of the evidence the defendant, John L. Blessing, moved that the complaint be dismissed as to him, in various forms, on the ground that the note, as to him, was barred by the Statute of Limitations. The learned trial judge denied the motion, and submitted to the jury two propositions : Fwst. Whether the defendant, John L. Blessing, executed the note. Second. Whether the payments of interest were made on his behalf. To which ruling the counsel for the appellant excepted.

We think the motion should have been granted. The note, upon its face, was barred by the Statute of Limitations, and there was no evidence of payments by the appellant to take it out of the operation of the statute.

The burden was upon the plaintiff to show affirmatively that John L. Blessing had personally, made, or directed to be made, some payment or had done some other act to arrest the running of the statute. (Miller v. Magee, 17 N. Y. St. Repr. 547 ; Hulbert v. Nichol, 20 Hun, 454 .)

Payment by Martin J. Blessing, one of the other makers, of the interest, while it prevents the running of the statute as to him, does not, without express direction or authority from the other makers, have that effect as to them, and will not, as to them, revive a claim barred by the statute. (Dunham v. Dodge, 10 Barb. 566 ; Shoemaker v. Benedict, 11 N. Y. 176 ; Winchell v. Hicks, 18 id. 558; McMullen v. Rafferty, 89 id. 456.)

The relation of joint and several makers of notes raises no implication of the relation of an agency by which one can bind another hi the renewal of an obligation so as to prevent the running of the Statute of Limitations. Van Keuren v. Parmelee, 2 N. Y. 523 ; Winchell v. Hicks, supra ; Smith v. Ryan, 66 N. Y. 358 .)

In the case last cited Allen, J., says“ The principle is recog-, nized in all the cases that a payment which is to operate as an acknowledgment must be made by the debtor or his authorized agent; that is, an agent having authority to make a new promise or to perform for the party the very act which is to be the evidence of a

We think, therefore, upon the evidence in this case, as it stood at the time the parties rested, the judge should have dismissed the complaint as to this appellant.

The judgment must be reversed and a new trial ordered, costs to abide the event.

Putnam and Herrick, JJ., concurred.

Judgment reversed, new trial granted, costs to' abide the event."