101 N.Y.S. 263 | N.Y. App. Div. | 1906
Lead Opinion
More than twenty years had elapsed since tne accruing of the liability of Solomon Deyo, prior to the commencement of the action. The bar of the Statute of Limitations is sought to be avoided by certain payments of interest made by Solomon Deyo during the years from 1899 to 1903. The sole question for determination is as to the effect of these payments of interest as being such a renewal of the obligation as to prevent the running of the statute. Solomon Deyo was the secretary and treasurer of the corporation. From the real estate owned by the corporation the rents were collected . by Deyo. He paid all charges against. the property. It. appears' that he did not keep a separate account in the bank as treasurer of this corporation. When the semi-annual interest upon this mortgage was paid by him, it was invariably paid by a check upon the mercantile firm, of which he was a mem-. her, and was accompanied by a letter, • of which the following is a sample:
*3 “New Paltz, Jany. 25, 1899.
“ Jno. B. Alliger, Treasurer :
“ Dear Sir.— Enclosed find check of S. Deyo & Son for Seventy-five Dollars, to pay interest on mortgage of the Hew Paltz Literary Association due Jany. 1.
“ Please acknowledge and oblige,
Tours Truly,
“ SOLOMON DEYO.”
John B. Alliger, as the plaintiff’s treasurer, returned to said Deyo a receipt in substantial form as follows :
“ No. 1791/2. Kingston, N. Y., Jan. 26, 1899.
“ Ulster County Savings Institution.
“Deceived from New Paltz Literary Association Seventy-five Dollars For interest due on'Bond and Mortgage to Jan. 1st, 1899.
“ $75. JNO. B. ALLIGER,
“ Treasurer."
Upon the witness stand Mr. Alliger swore that he did not know that Solomon Deyo was the treasurer of the institution, and that the receipt was given in form as a receipt from the Hew Paltz Literary Association according to a custom to receipt as from the mortgagor all. interest received upon mortgages held by the bank.
It does not appear in the case that he knew that Solomon Deyo was liable in any way for the debt. The triai court has found that Solomon Deyo paid no part of said bond and mortgage or interest except, as -treasurer of the New Paltz Literary Association, for wl.iicli he made payments of semi-annual interest, and that the plaintiff understood at the time of the receipt of said payments that the said payments were being made by the said New Paltz Literary Association, and that said payments were in fact made by said association. It is found, however, in answer to a request, that these payments were made by checks upon the mercantile firm of which Solomon Deyo was a member. As a conclusion of law th'e court finds that the Statute of Limitations is a complete bar to the liability of the estate of Solomon Deyo. These conclusions the appellant challenges as not warranted by the undisputed evidence ‘ in the case. In Littlefield v. Littlefield (91 N. Y. 203) one of three makers of a joint and several promissory note, who in fact
If, then, the payment in order to avoid the statute must be such as constitutes a recognition of the debt and implies a promise to pay in full we must agree with the trial court that there is here found no such recognition by Solomon Deyo of a personal debt or implied promise to pay the same. While the payment was in fact from the funds of the mercantile firm of which he was a member, Solomon Deyo was the treasurer of the association, in ¡receipt of the income of the association, with a legal duty, as treasurer, to pay this interest. His payment was a distinct recognition of the liability of the association, and from it an implied promise could be found that the association would pay the balance of the liability. Hot a suggestion is found of a recognition of any personal liability or of any implied promise to remain personally bound as surety for the debt. The finding of the Special Term that these moneys were received and understood to be payments from the mortgagor is amply sup
All concurred, except Kellogg J., dissenting in opinion; Parker P. J., not voting..
Dissenting Opinion
(dissenting):
The payments upon the mortgage were all made'by Deyo with .his money, and were paid generally. In fact, the savings bank; the ■ owner of the mortgage, did. not know that he was treasurer of the literary association, and he did no act indicating to it that he was making the payment as such treasurer* While the receipts were issued in the name of the association, it was done according to the usual custom of the savings bank and because the association ivas •the mortgagor,, It was not done at the request of Deyo, or for any other purpose except in pursuance of this custom and .for convenience. There is nothing, therefore, tending to showr that the payment was not intended and understood as that of Deyo. The let- ' ters inclosing the checks were his personal letters -and not the letters of the association. The checks were drawn by him in the name of his mercantile firm upon the bank with which it dealt, but the mercantile firm never had any of the rent money and had no dealings with the literary association. It does not appear what rents Deyo collected from the property of the association, or that they were any . substantial part-of the payments which he made to the savings bank. It requires imagination to put life into the association, The only
There is no claim of any authority or direction from the association to pay the interest or collect the rents. Having paid the interest with his own money he had a legal offset against any rents which he received or might have received from the association, and the evidence shows that the association was indebted to him in a considerable amount, probably arising from the fact that he had paid out more interest than he had received in rents. Where there are two parties liable upon an instrument and payments are made by one, such payments do not keep alive the debt against the other party, unless he is shown in some way to be a party to the payment,
Judgment affirmed, with costs,