64 N.Y.S. 861 | N.Y. App. Div. | 1900
' The. oral proof shows that at the time the letter quoted was written the only indebtedness existing in favor of Mr. Fletcher, the payee, and against the defendant, was that evidenced by the note in suit, and it is conceded that the letter relates to that* note. It unmistakably recognized the existence of an indebtedness and an expectation on the part of the writer to pay it. He intends to “ set all things right and to your satisfaction,” and “to settle all up with you and pay ‘ interest on interest ’ as well,” and that he will be a happy man when I get it all made right with you.”
Section 395 of the Code of Civil Procedure makes an “ acknowledgment or promise ” in writing, signed by the party to be charged thereby, sufficient to take the case out of the operation op the Statute of Limitations. It will be observed the language iised is in the alternative; and a recognition of the debt.an admission that the writer is the debtor of the person addressed,, is all that is necessary to make a new date- from which the statute commences to run. (Cudd v. Jones, 63 Hun, 142; Wright v. Parmenter, 23 Misc. Rep. 629 ; Shaw v. Lambert, 14 App. Div. 265.)
The defendant can be identified by paroi evidence. (Manchester v. Braedner, 107 N. Y. 346.)
A promise to pay is not necessary. (Henry v. Root, 33 N. Y. 526, 530 ; Kahn v. Crawford, 28 Misc. Rep. 572.)
It is essential that the writing, either in precise terms or fairly construed, disclose a purpose to recognize the claim as an obligation. The letter in suit seems to have been written for the purpose of assuring the holder of the note that, while it had been long overdue, the debtor still had it in mind as a debt against him and still expected to meet it. The reference to the “ ‘ gun ’ business ” was apparently with the object of showing that the defendant still, had money in that venture and anticipated a return therefrom. He did not make his willingness or intention to pay conditional in any way upon the result of that investment. It was rather an extenuation of his failure to pay coupled with an assurance that the obligation would still be met. ■ It is the letter of a man who has a debt which he cannot pay. He keenly feels his inability to do so and is not seeking to shirk the indebtedness, but to quiet his creditor with a promise.
The judgment is affirmed, with costs to the respondent.
All concurred.
Judgment affirmed, with costs.
