11 Barb. 554 | N.Y. Sup. Ct. | 1852
By the Court,
The note was due immediately, and allowing the creditor the benefit of the eighteen months, as provided by statute, to be added, in consequence of the debt- or’s death, (2 R. S. 448, § 8,) the seven years and six months elapsed on the 23d of July, 1846. (3 Hill, 36.) And as this suit was not instituted until March, 1850, the question turns upon the effect of the surrogate’s decree and order for distribution. Neither the administratrix’s petition nor the order of sale to pay debts, nor any of the other proceedings before the surrogate, mention any particular debt as due to the plaintiffs, or whether it was upon a note. But as no objection seems to have been raised for the want of that proof, I shall take it for granted that the indebtedness to the plaintiff, as established by the decree, was on this note. The question then is, whether the decree of the surrogate establishing the indebtedness on this note, and ordering a pro rata payment out of the assets of the decedent, is in law a.promise on the part of the administratrix to pay the balance, so as to deprive her of the benefit of the statute of limitations. It- seems to me quite clear that it is not. In order to take a demand out of the statute of limitations, by a part payment, it must appear that the payment was made on account of the debt for which the action is brought. And it must further appear that the payment is made as part payment of a larger debt; because the principle upon which a part payment takes a case out of the statute is, that it admits a larger debt to be due at the time of the part payment. Unless it amounts to an admission that more is due, it can not operate as an admission of any still existing debt. On this principle it was held, in the case of Deyo v. Jones, (19 Wend. 491,) that the consent of an executrix of her husband, that a note of her husband which was barred by the statute, might be deducted' from a legacy due to her, by her father’s will, did not amount to a promise to pay the balance of the note, so as to revive the debt against her as such
But in order to make a part payment, evidence of a promise to pay the balance, it must be voluntary on the part of the debtor, and it must occur under such circumstances as are consistent with an intent to pay such balance; which is not the case when the payment is involuntary, or in the course of administering the assets of insolvents, bankrupts, or under decrees of surrogates. ' In this case the answer expressly denies that the payment was made by the administratrix, or with her assent; and there is no proof that it was so made.
But if the complaint was founded upon the decree of the surrogate, instead of the note, still the statute of limitations would be a valid bar, because those courts are not courts of record, and the 18th section of the statute of limitations (2 R. S. 224) declares judgments of courts not of record to be barred in six years. The statute (2 R. S. 206, § 1) declares the several courts treated
Mason, Crippen, Shankland and Gray, Justices.]
For the above reasons, the judgment should he reversed and a new trial granted, with costs to abide the event.