51 N.Y.S. 1003 | N.Y. App. Div. | 1898
Lead Opinion
In the case of Dusenbury v. Hoyt, 53 N. Y. 521, it was settled that, while the legal obligation to pay a debt was extinguished by a discharge in bankruptcy, the moral obligation to pay remained, and that this obligation, when united with a subsequent promise to pay the debt, gave a right of action. It was also held in that case that a plea upon the original debt was a good plea, and that no reply was needed in order to prove the new promise, in avoidance of a plea setting up the discharge in bankruptcy. This has been the established rule.since. Argall v. Jacobs, 21 Hun, 114; Graham v. O’Hern, 24 Hun, 221. The promise which will revive the debt must express a clear intention to pay the same. Partial payment will not, of itself, answer for this purpose. ' In this respect the rule is different as applied to a debt barred by the statute of limitations, where by reason of a payment in part is raised the implication of a promise to pay the residue. Lawrence v. Harrington, 122 N. Y. 408, 25 N. E. 406. An indorsement of a payment made by the debtor upon the obligation has been held insufficient to revive a debt discharged in bankruptcy. Merriam v. Bayley, 1 Cush. 77. The payments in the present case were sufficient to avoid a plea of the statute of limitations, and the debt, as to such statute, was kept- alive. The evidence to support a promise is found in the testimony of the plaintiff, in letters which were written by the defendant, and in the payments which were made. The plaintiff testified that the defendant said “when the city of New York paid him for his property, here, he would surprise me, and settle with me the whole amount. Q. The whole amount of this obligation? A. Yes, sir.” Upon cross-examination she testified that he said, “If you will only wait—hold on a little longer—until the New York folks pay me, then I will pay you.” This evidence was sufficient to establish an express promise to pay the debt, but it was coupled with a condition; and, before-an action could be successfully maintained, it would be necessary to establish, as a condition precedent, that the contingency upon which the promise was founded had happened. Sherman v. Hobart, 26 Vt. 60; Wakeman v. Sherman, 9 N. Y. 85. It appears, however, that subsequent to the making of this promise the defendant made five • different payments, in money, upon the note, and gave to the plaintiff two checks of $10 each. In addition to this, and upon February 1, 1889, he sent an order of $15 to the plaintiff, to trade out at the store of E. J. Wilson. On March 14,1890, he sent another order, of $10, upon the same store. In the letter which accompanied the first order he states: “This will help you a small amount, till I can do better.” In the second letter he says: “Please keep account of what I have paid you. I * * hope that you may yet have better health, and now and then get a share of what is due to you from me.” This testimony, coupled with defendant’s oral declarations, clearly authorized the jury to find a recognition of the debt, an inten
The judgment should be affirmed. All concur, except GOODBlOH, P. J., dissenting.
Dissenting Opinion
I dissent from the prevailing opinion of Mr. Justice HATCH, as I do not find evidence sufficient to predicate a waiver of the condition attached to the defendant’s promise. The condition was that, when “the New York folks pay me, then I will pay you.” In Lawrence v. Harrington, 122 N. Y. 408, 414, 25 N. E. 406, the court cited with approval the opinion of the court in Allen