Brooklyn Bank v. Barnaby

Kelly, J. To bar the Statute of Limitations, there must be a deliberate, voluntary act of the debtor or his agent, evidencing an intention on his part to acknowledge the existence of the debt. Section 382, Code Oivil Procedure, provides that an action upon a contract, obligation or liability, express or implied, must be commenced within six years after the cause of action has accrued. Section 395 of the Code provides: “An acknowledgment or promise contained in a writing, signed by the party to be charged thereby, is the only competent evidence of a new or continuing contract, whereby to take a case out of the operation of this title. But this section does not alter the effect of a payment of principal or interest.” The defendant relies on a line of decisions to the effect that an involuntary payment, or a payment by operation of law, as through levy and sale under execution or by foreclosure and the like, is not sufficient to bar the statute. This may be so, but the payment in this case, on December 10, 1901, was not such-a payment. It was a payment made by defendant through his agent, the cashier, who was expressly authorized in writing signed by defendant to sell the collateral without notice, at public or private sale, at his option, applying the proceeds to the payment of the note. And he was notified of the transaction and in no way objected to the act of the cashier. Judge Rapallo says, in Harper v. Fairley, 53 N. Y. 442, cited by defendant, “ The reasoning of such cases as McLaren v. McMartin, 36 N. Y. 88 and Pickett v. Leonard, 34 N. Y. [199] 175, determines that a part payment, whether made before or after the debt is barred by the statute, does not revive the contract, unless made by the debtor himself or by some one having authority to make a new promise on his behalf for the residue.” And to the same effect, Adams v. Olin, 140 N. Y. 150; Crow v. Gleason, 141 id. 489. In the case at bar, the payment was made by the cashier, acting as the agent of the defendant, under the express authority contained in the collateral note, a form of security used every day in the business world, and as to the legal effect of which there is, in my opinion, no question. I, therefore, direct a verdict for the plaintiff for $13,565, the balance due upon the note, with interest to be computed. Judgment for plaintiff.