McNamee v. Tenny

Leonard, J. The acknowledgment need not express any intention to pay. An intention to pay is to be presumed. It is of very little consequence what was the intention of the debtor in this respect. If he acknowledges the existence of the debt, in writing, the provisions of the law are met, and the statute of limitations has not attached. In the absence of proof that other demands existed to which the acknowledgment of the defendant might apply, the presumption is that it applied to the demand proven. (Davenport v. Gilbert, 6 Bosw. 180.) The evidence adduced removed the uncertainty or doubt, if any existed, and was in my opinion admissible. There is nothing in Winchell v. Hicks (18 N. Y. Rep. 560) adverse to a recovery in this case. The plaintiff is entitled to judgment, with costs. Clerke, J. The chief difficulty which first occurred to me in this case was the want of an explicit acknowledgment, specifying the debt. But I find in the second letter of the defendant, in a postscript, a sufficient identification of the debt. He says the amount of the plaintiff’s debt, at 20 per cent, would be $108.09 cash. On referring to the note we find it to be $540.42, which at 20 per cent would be the .amount mentioned. [507] I think therefore this was a sufficient acknowledgment, and that the plaintiff is entitled to judgment, with costs.