Bender v. Blessing

MAYHAM, P. J. This action was commenced by the service of a summons on the defendant April 17, 1892. The action was [482] brought upon a promissory note for $240, dated May 3, 1879, payable to the order of John L. Blessing, and signed by Martin J. Blessing, Thomas Hilme, and John L. Blessing; and John L. Blessing and Martin J. Blessing were the only defendants named in the summons. John L. Blessing alone answered, and by his answer denied the execution of the note, and for a separate defense set up the statute of limitation. The only real question on this appeal arises upon the defense of the statute of limitation. On the trial the plaintiff introduced evidence tending to show that the note was given for money advanced at the time the note bears date to John L. Blessing, the appellant, and that he negotiated the loan of the plaintiff. The plaintiff proved the execution of the note, and that the interest had been paid on it up to May, 1891, but did not prove by whom the payments of interest were made. The defendant introduced, in evidence eight vouchers for interest purporting to be paid by Martin J. Blessing, and signed by the plaintiff; each acknowledging the payment of $16.80, and the last bearing date February 25, 1891. There is no proof in the case that the defendant John L. Blessing ever paid or authorized the payment of any interest on this note. At the conclusion of the evidence the defendant John L. Blessing moved that the complaint be dismissed, as to him, in various forms, on the ground that the note, as to him, was barred by the statute of limitation. The learned trial judge denied the motion, and submitted to the jury two propositions: First, whether the defendant John L. Blessing executed the note; second, whether the payments of interest were made on his behalf,—to which ruling the counsel for the appellant excepted. We think the motion should have been granted. The note, upon its face, was barred by the statute of limitation, and there was no evidence of payments by the appellant to take it out of the operation of the statute. The burden was upon the plaintiff to show affirmatively that John L. Blessing had personally made, or directed to be made, some payment, or done some other act to arrest the running of the statute. Miller v. Magee (Sup.) 2 N. Y. Supp. 156; Hulbert v. Nichol, 20 Hun, 454. Payment by Martin J. Blessing— one of the other makers—of the interest, while it prevents the running of the statute as to him, does not, without express direction or authority from the other makers, have that effect as to them, and will not, as to them, revive a claim barred by the statute. Dunham v. Dodge, 10 Barb. 566; Shoemaker v. Benedict, 11 N. Y. 176; Winchell v. Hicks, 18 N. Y. 558; McMullen v. Rafferty, 89 N. Y. 456. The relation of joint and several makers of notes raised no implication of the relation of an agency by which one can bind another in the renewal of an obligation, so as to prevent the running of the statute of limitation. Van Keuren v. Parmerlee, 2 N. Y. 523; Winchell v. Hicks, supra; Smith v. Ryan, 66 N. Y. 358. In the case last cited, Allen, J., says, “The principle is recognized in all cases that a payment which is to operate as an acknowledgment must be made by the debtor or his authorized agent,—that is, an agent having authority to make a new promise, or to perform for a- party the very act which is to be the evidence of a new promise”; and the [483] learned judge adds, “There is no agency, as between several joint debtors, or between principal and surety, or between an insolvent debtor and his assignee, which will make a payment by one evidence of an acknowledgment of the debt of the other, so as to revive the demand” ; citing in support of that doctrine some of the cases above referred to. We think, therefore, upon the evidence in this case, as it stood at the time the parties rested, the judge should have dismissed the complaint as to this appellant. Judgment reversed and a new trial ordered; costs-to abide the event. All concur.