First Nat. Bank of Utica v. . Ballou
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the fifth judicial district in favor of plaintiff, entered upon a verdict. The action was brought to recover the amount of three promissory notes made by defendant, Shearman, and indorsed by defendant, Ballou, for the accommodation of Shearman. Ballou alone appeared in the action and pleaded the statute of limitations.
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Appeal from judgment of the General Term of the Supreme Court in the fifth judicial district in favor of plaintiff, entered upon a verdict. The action was brought to recover the amount of three promissory notes made by defendant, Shearman, and indorsed by defendant, Ballou, for the accommodation of Shearman. Ballou alone appeared in the action and pleaded the statute of limitations. Three payments of interest were made upon the note by Shearman within six years of the commencement of the action. He received a receipt stating, in substance, that plaintiff received the payment from Ballou by…
1Opinion of the CourtHapallo, J.
The fact relied upon by the respondent to take this case out of the operation of the statute of limitations is a payment by the defendant of interest on the notes in suit, made on the 26th of July, 1859, which was less than six years before the commencement of the action.
Section 110 of the Code, which requires that an acknowledgment or new promise should be in writing, does not alter the effect of a payment of principal or interest. Nor does it prescribe any new rule of evidence as to the fact of such a payment. (Cleave v. Jones, 4 Eng. Law and Eq., 514; Williams v. Gridley, 9 Metc., 485;…
2Cases cited2 opinions
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