202 N.Y. 289 | NY | 1911
On March 1, 1895, the defendants borrowed of Charles Genter six hundred dollars for which they gave to him a promissory note, of which the following is a copy:
"$600.00 THERESA, March 1, 1895.
"For value received, we jointly and severally promise to pay Charles Genter, or bearer, six hundred dollars one year after date, at five per cent. interest.
"ELMER E. HUBBARD, "HENRY H. HUBBARD."
The defendant Elmer E. Hubbard paid the interest on said note annually for eleven years. He also paid thereon $300 on account of principal. Prior to the commencement of this action the plaintiff became the owner and holder of said note and on April 28, 1908, this action was commenced thereon. The appellant, Henry H. Hubbard, answered the complaint, in which he alleged: "First. That prior to the commencement of this action he fully satisfied and discharged any and all claims and indebtedness in said complaint set forth by payment in full. Second. That the cause of action set forth in said complaint did not accrue nor did any part thereof accrue at any time within six years next preceding the commencement of this action." *291
It affirmatively appears that the appellant never made any payments upon said note. It is claimed by the respondent that some of the payments made by the defendant Elmer E. Hubbard were in the presence of the appellant.
It was held by this court in McMullen v. Rafferty (
It does not appear that the appellant authorized the defendant, Elmer E., to make any payment upon such note.
Unless a payment by one of two joint and several debtors prevents the running of the Statute of Limitations as to all, there is no evidence on which to sustain the judgment as against the appellant. There has been a controversy in some jurisdictions as to the legal consequences of a payment made upon an indebtedness by one *292
of two or more joint debtors, so far as it affects the running of the Statute of Limitations against the debtors other than the person making the payment. In Shoemaker v. Benedict (
There have been many cases in this court approving and confirming the authority of that case. Among the most recent of the reported decisions is Brooklyn Bank v. Barnaby (
It is also claimed by the respondent that the appellant is precluded from claiming the Statute of Limitations as a bar to this action by reason of the first paragraph of his answer, in which he alleges the full satisfaction and discharge of the indebtedness.
The record shows that the appellant was mistaken in his allegation that the indebtedness was fully satisfied and discharged. If we accept the pleading as an admission, it does not appear thereby independently of the evidence received upon the trial or by the record as an entirety, that the appellant satisfied and discharged the indebtedness or made any payments thereon at a time *293 within six years prior to the commencement of the action.
The judgment should be reversed and a new trial granted, with costs to abide the event.
CULLEN, Ch. J., GRAY, VANN, WILLARD BARTLETT, HISCOCK and COLLIN, JJ., concur.
Judgment reversed, etc.