28 Misc. 572 | N.Y. App. Term. | 1899
The question involved on this appeal is whether a certain claim is barred by the Statute of Limitations.
The action was brought to recover the sum of $127.75 for merchandise alleged to have been sold by one Samuel Baers to the defendant between the 19th day of December, 1892, and the 30th day of January, 1893. Baers died in April, 1891, and his wife, who was appointed his administratrix, transferred the claim to the plaintiff. The summons in this action was served on the 21st of lyTnrc.hj 1899; therefore, more than six years after the cause of action had accrued. Among other defenses pleaded was the Statute of Limitations. On that plea judgment was rendered in the defendant’s favor.
“Hotel Albeet:
“ Eleventh Stbeet, Near Bboadway,
“ New Yoke.
“ I. D. Cbawfobd, Manager,
“New Yobk, November 8, 1895.
“ Messes. Fbank & Fbied,
“Attorneys, City:
“Mb. Joseph Fbied:
“ Dear Sib — Your communication of the 6th inst. in reference to claim of the estate of Sam Baers I would state, I am at work on a salary and it being my first year in New York my salary is limited and it does not admit of any chance to pay any old debt, as much as I would like to. Should things be any better for me next year I may be able to make some arrangement in reference to this claim. Will be pleased to do so as soon as I can.
“ Yours very truly,
“ I. D. Cbawfobd.”
We are of the opinion that this letter contained such an acknowledgment, within the meaning of section 395 of the Code of Civil Procedure, as to take the case out of the operation of the statute. In the case of Wright v. Parmenter, 23 Misc. Rep. 629, recently decided by this court, where the language of a letter in all respects weaker than that of the one here in suit was construed, it was said: “ It has never been regarded as necessary that the writing should be a formal acknowledgment of the continued existence of the debt. Whatever be the language used, if it is susceptible of a construction which fairly discloses an intention to recognize the claim, the acknowledgment is deemed sufficient within the statute, if not coupled with a refusal to pay or other conditions inconsistent with a purpose to do so; and where conditions are imposed, a compliance therewith may be shown. A promise to pay, however, in terms is not requisite. If the acknowledgment of the debt is sufficient and unconditional, a promise to pay it may be implied. If the writing contains either an acknowledgment or a promise, it is sufficient.”
In the case at bar there is no dispute between the parties as to the identification of the claim. It is conceded that the claim
Fbeedmaií, P. J., and MacLeah, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.