31 N.Y.S. 481 | N.Y. Sup. Ct. | 1894
This action was commenced by the service of a summons on the defendant April 17, 1892. The action was
We think the motion should have been granted. The note, upon its face, was barred by the statute of limitation, 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 done some other act to arrest the running of the statute. Miller v. Magee (Sup.) 2 N. Y. Supp. 156; 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 N. Y. 558; McMullen v. Rafferty, 89 N. Y. 456. The relation of joint and several makers of notes raised no implication of the relation of an agency by which one can bind another in the renewal of an obligation, so as to prevent the running of the statute of limitation. Van Keuren v. Parmerlee, 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 recognized in all 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 a- party the very act which is to be the evidence of a new promise”; and the