In re the Judicial Settlement of the Accounts of Volk

Schenck, J. The decedent, William. F. Pappalau, died May 19, 1939, leaving no assets except his interest in the estate of his deceased father. Harry Pappalau, decedent’s brother, has filed a claim against decedent’s estate, which claim was rejected by the administratrix. At the time of his death decedent and his brothers Harry and Edward were conducting a business, each having an equal interest therein. The claim herein is for board for deceased and his son from May 1, 1919, to May 1, 1928, at ten dollars per week, and for board for deceased alone from May 1, 1928, to May 19, 1939, at seven dollars and fifty cents per week. Cash credits are conceded by claimant in the amount of $6,150. The balance claimed, including forty dollars for hospital bills and an advance on a finance company loan, is $2,470. There was an issue of fact and the court found that the evidence produced by claimant is insufficient to establish the existence of this claim. Moreover, claimant has failed to establish that any board or room service was rendered deceased and his son and has wholly failed to show the value thereof. Appellant asserts that the surrogate erred in refusing to admit in evidence claimant's Exhibit 1 for identification, which is apparently a note book and shows certain entries. There is no evidence before us to indicate that this book is a record made in the usual course of business bringing the book within the provisions of the Civil Practice Act (§ 374-a) and I am inclined to the belief that the surrogate properly rejected it as evidence. The statute does not permit the receipt in evidence of entries based upon voluntary hearsay statements made by third parties not engaged in the business or under any duties and relation thereto. It does not provide for the admission in evidence of a mere private memorandum. (Mayor, etc., of N. Y. v. Second Avenue R. R. Co., 102 N. Y. 572, at p. 581; Johnson v. Lutz, 253 id. 124; Matter of Roge v. Valentine, 280 id. 268.) But aside from these factual considerations, the claim is barred by the Statute of Limitations and was not revived by alleged part payments on account of a pre-existing debt. The claimant’s theory seems to be that this was a running account and that payments constituting the aforesaid “ cash credits ” have successively tolled the Statute of Limitations. The last payment was alleged to have been made on November 24, 1937. This was in the amount of $100. The payment next preceding it was in 1932 and was in the sum of fifty dollars. At the time of the payment in 1937 claimant’s wife, the only person to witness the transaction, testified: “ Q. William [deceased] said, ‘ here is the hundred dollars I owed you for my back board/ [707] A. Yes, sir. Q. And Harry [claimant] took it? A. Yes, sir. Q. That is all the conversation? A. Yes, sir.” In other words, claimant’s evidence shows that deceased in 1937 acknowledged and paid $100 for “ back board.” Nothing was said about a “ running account.” Payment was offered and accepted in language to indicate that it was full payment to date. In order to hold that a payment is on account so as to toll the Statute of Limitations, the payment must unequivocally be under circumstances to indicate it to be on account of a past debt, with intent to make further future payments. (Brooklyn Bank v. Barnaby, 197 N. Y. 210; Scott v. Palmer, 246 App. Div. 379.) Again, in Adams v. Olin (140 N. Y. 150, at p. 160), Judge Gray, writing for the court, laid down the rule that a payment will not be regarded as an admission of an old debt unless it is the “ deliberate act of the debtor, evidencing, or accompanied by some evidence of, an intention to thereby acknowledge to his creditor the existence of the greater indebtedness.” In Crow v. Gleason (141 N. Y. 489, at p. 493) Judge Earl had this to say: “ In order to make a money payment a part payment within the statute, the burden is upon the creditor to show that it was a payment of a portion of the admitted debt, and that it was paid to and accepted by him as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder.” The 1937 payment did not toll the statute. Rights under the old claims, if there ever were any, accordingly, are barred by the statute, and claimant is limited to debts claimed for the six years next preceding deceased’s death. This period goes back only to 1933. For this period, moreover, the claim, as filed, gives credit for board in the full amount on the theory that seven dollars and fifty cents per week was deducted from deceased’s weekly drawing as partner in the firm of V. Pappalau’s Sons. Accordingly, no board charges are claimed for the six-year period beyond those already received and credited. These credits were, of course, current payments, and it is not even argued that they tolled the statute. Claimant’s claim as to board should, therefore, be dismissed in its entirety. As to the forty dollars for hospital charges advanced and payment on a loan made to the Personal Finance Company, the Statute of Limitations does not apply. Nor is the proof clear on this point. The money was never requested by deceased, was not paid directly to him, and the record does not show that it ever accrued to his benefit. There was merely testimony by claimant himself that it was intended for the benefit of deceased. This is insufficient, and this portion of the claim must be denied on this ground. The decree of the surrogate should be affirmed, with costs. [708] Foster, J., concurs; Bliss, J., concurs in a separate memorandum; Hill, P. J., dissents in an opinion, in which Crapser, J., concurs.