In re Petrie

A proceeding was instituted in the Surrogate’s Court of Herkimer' -county on the application of Thomas R. Petrie and another, administrators of the goods, chattels and credits of Stillman B. .Sanders, deceased, for the disjiosition of the decedent’s real property for the payment of his debts. While such proceeding was pending, and on or about January 31, 1891, Madeline Harter presented a claim •against the estate of the decedent for $600 and interest from November 2, 1889. The claim thus presented was upon a promissory note dated March 8, 1815, whereby Thomas R. Petrie and the decedent promised to pay to Madeline Harter or bearer the sum of ■$1,200 with interest one year from the date thereof. Payments had been made from time to time, so that there remained unpaid thereon only the sum of $600 and interest as already stated. Hpon Hie presentation of this claim, which was assigned to Hudson B. Farrington March 10, 1891, the administrators filed an answer setting up the Statute of Limitations.

Upon the trial the only question litigated was whether this claim was barred by the statute. It clearly appears that more than six years had elapsed after the note became due, and before the death of the intestate. The only ground upon which the claimant sought to avoid the operation of the statute was, that within six years before the death of the intestate he had made a payment upon such note.

The surrogate found that the note was made and executed by Thomas R. Petrie and the intestate, and delivered to Madeline Harter on March 8, 1875 ; that Thomas R. Petrie was the principal maker and had the benefit thereof, the intestate having signed the same as surety; that the intestate died on September 18, 1890, and Thomas R. Petrie and Marietta S. Gardner were duly appointed administrators of his estate-on or about October 9, 1890 ; that $600 of the principal and the interest in full on sucli note up to March 8, 1883, had been paid ; that about January 1, 1887, Petrie delivered to Miss Harter, to apply as payment' on said note, a load of hay of the value of five to ten dollars, which with other payments, making $91.28, was indorsed on said note by Petrie November 2,1889 ; that no other payments had been made thereon; that the hay was delivered about January 1, 1887, was delivered by Petrie and was a payment made by him, and not a payment made by him as agent for the decedent, and not a payment by the decedent upon the note ; and that for six years prior to his death the intestate made no payments upon sucbj note, or did any act to prevent the running of the Statute of Limitations.

As a conclusion of law the surrogate held that the note and claim of the claimant was barred by the Statute of Limitations as against the estate of the intestate, and was not a valid claim against it. In pursuance of this decision a decree was entered which, among other things, ordered, adjudged and decreed that the claim of Madeline Harter, assigned to Hudson B. Farrington, was not a valid or sub

An examination of the evidence discloses that whether the payment of January, 1887, was made by or for tlie intestate, or was made by Tilomas R. Petrie, one of the makers of the note, was at least a question of fact to be determined by the Surrogate’s Court. If that payment was made by Petrie, and not by or for the intestate, it is obvious that tlie claimant’s note was barred by the Statute of Limitations as against his estate. Tlie evidence upon tlie question whether the payment was made by Petrie or by or for the decedent was, perhaps, conflicting, and yet a careful examination shows that it was sufficient to sustain the finding of the Surrogate’s Court that the payment was made by Petrie and not by or for the decedent. We think this finding was fairly sustained by the evidence, and hence the Surrogate’s Court was justified in holding that the claim of the claimant was barred by the Statute of Limitations.

While where a payment of interest was made upon a promissory note by tlie maker in the name of and as agent for another who was liable thereon, it was held that a subsequent recognition and approval of the act by the other, with full knowledge of the facts, was, as to the Statute 'of Limitations, equally binding upon him as a payment made by himself, and that it was immaterial whose money was used in making the payment (First Nat. Bank of Utica v. Ballou, 49 N. Y. 155 ), yet it lias also been held that where one of three makers of a joint and several promissory note, who in fact signed it as a surety, upon being applied to for payment, requested the payee to tell the principal that he must make a payment thereon, and that he, the surety, said so, and the payee made the statement to the principal as requested, who promised to and did subsequently make a payment which he reported to the surety, who said it was all right, it was held that these facts did not show an authority conferred upon the principal to make a payment as agent of the surety, so as to take the case as to the latter out of. the Statute of Limitations, and also that they failed to establish a ratification of the pay-

Upon the facts as found by the Surrogate’s Court, there is nothing in any of these cases which would have authorized the court to hold that the intestate made any payment which would relieve the •debt, as against him or his estate, from the bar of the statute. Under the facts found, and- the principles of law applicable to this ■question, we think the Surrogate’s Court was clearly justified in its ■conclusion that the claimant’s demand was not as against the deced■ent’s estate relieved from the bar of the Statute of Limitations by the delivery of the load of hay in January, 1887.

"We have examined the several exceptions of the appellant to the admission and rejection of evidence, to which our attention has been directed by him, but have found none that require a reversal of the ■portion of the decree appealed from. "While it may be admitted that some of the rulings as to the admission and rejection of evidence are, at least, of doubtful propriety, still, as the only material issue ■which was litigated by the parties was whether the decedent made ■fhe payment of-January, 188-7, or procured it to be made under such circumstances as to relieve ihe note from the bar of the statute as against him or his. estate; and as the evidence to which the appel

These considerations lead us to the conclusion that the decree of ■the Surrogate’s Court should be affirmed. ■,

HaediN, P. J., and Merwikt, J., concurred.

Decree of the Surrogate’s Court of Herkimer county affirmed, with costs.