Commercial Mutual Insurance v. Brett, 44 Barb. 489

Commercial Mutual Insurance v. Brett

44 Barb. 489 | N.Y. Sup. Ct. | 1865

By the Court, Ingraham, P. J.

The words of the statute applicable to this case are as follows : “ Ho acknowledgment shall be sufficient evidence of a continuing contract whereby to take the case out of the operation of this title, unless the same be contained in some writing signed by the party to be charged thereby. (Code, § 110.) What was necessary as an acknowledgment to take a debt out of the statute was fully .discussed in Allen v. Webster, (15 Wend. 284.) and after citing various cases, Savage Ch. J. says: “ Since the case of Sands v. Gelston, there has been no dispute as to what the rule in fact is, to wit, that to revive a debt barred by the statute of limitations, there must be an express promise, or an acknowledgment of a present indebtedness ; a subsisting liability, and a willingness to pay it. If the defendant denies its justice, or claims the protection of the statute, no action lies.” This was before the present statute I was passed, and while a parol promise would have been I sufficient. The rule has, however, remained the same as to i what was necessary to constitute a sufficient acknowledgment-. In Van Keuren v. Parmelee, (2 Comst. 523,) the same rulé was recognized. “ There must at the least be a plain admission that the debt is due, and that the party is willing to pay it.” It was also assented to in Shoemaker v. Benedict, *493(1 Kern. 176,) where it was said, “ That to continue or revive the debt, there must be an express promise to pay, or an acknowledgment of the existence of the debt, with the admission or recognition of an existing liability to pay it, from which a new promise may be inferred.” And again, “The same authority is required to make the promise before as after the six years have elapsed.” This was again recognized as the correct rule, in Winchell v. Hicks, 18 N. Y. Rep. 558.)

From these and many other cases, which might be cited, I think it is clear that an acknowledgment to be sufficient must not only be an admission of the existence of the debt, but in addition thereto a recogniztion of a liability to pay, in such a mode as. will authorize the inference of a new promise.

The present case does not present any such acknowledgment. The defendants were sued upon these notes in the superior court. The answer which is relied on as containing the acknowledgment, admitted the making of the notes and claimed that they were premium notes ; that a loss had been sustained under the policy; and that the notes should be paid out of the insurance moneys. There is nowhere in the answer any admission of present indebtedness, or any willingness to pay the notes, from which a promise to pay might be inferred, but on the contrary, a clear intent to dispute any liability on the notes and to insist that they had been paid by the loss, according to the terms of the policy. This would be sufficient to dispose of this case, but there is also another principle applicable to it, which is equally fatal to a recovery and which it is well to refer to. The admission is not a voluntary one, hut is one forced from the defendant by bringing the action, and which was necessary to set up the defense.

In Deyo v. Jones, (19 Wend. 491,) Nelson, Oh. J. says: “ The admission to avoid the statute must amount to an unqualified acknowledgment of the "debt, disconnected with any *494circumstance indicating an intention not to become liable upon it.” If there be no promise, but one is to be inferred from the admission, such an acknowledgment ought to contain an unqualified admission of a present subsisting debt which the party is liable and willing to pay. (Bell v. Morrison, 1 Peters, 351.) And in Bloodgood v. Bruen, (4 Selden, 362,) it was held that when an acknowledgment is made in an answer to a bill in chancery or drawn out from the debtor when testifying as a witness, no promise can be implied. Mason J. says: The answer was a compulsory statement under oath; the occasion when and the circumstances under which it was made repel any implication of a promise to pay the demand.”

[New York General Term, September 19, 1865.

The answer in this case was compulsory. The statements were necessarily made to set up the defense relied on, and instead of showing any thing from which a promise to pay may be inferred, the whole answer clearly shows the intent of the defendants to deny their liability and insist on having a good defense to the notes. It would be extremely difficult from such statements to infer that the defendants promised to pay.

The judgment should be affirmed.

Ingraham, Geo. G. Barnard and Oleiice, Justices.]