Smith v. . Ryan
New York Court of Appeals
Appeal from order of the General Term of the Superior Court of the city of Rew York, reversing a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 7 J. & S., 489.) This action was brought by plaintiff, as survivor of the firm of Isaac H. Smith & Son, to recover an alleged balance due that firm for goods sold. The defence was the statute of limitations.
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Appeal from order of the General Term of the Superior Court of the city of Rew York, reversing a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 7 J. & S., 489.) This action was brought by plaintiff, as survivor of the firm of Isaac H. Smith & Son, to recover an alleged balance due that firm for goods sold. The defence was the statute of limitations. The referee found the following facts, among others That, on the 10th day of April, 1868, the defendant was indebted to the said firm in the sum of $2,501.53 on account that, on or about the 14th day of…
1Opinion of the CourtAllen, J.
The transfer by the, defendant to the plaintiff of the note of Betts & Gray in April, 1868, was not a satisfaction of the debt owing by him to the plaintiff ymc tanto, but was merely a conditional payment which could only result in an actual satisfaction upon the payment of the notes by the, makers. (Vail v. Foster, 4 Com., 312 ; Whitbeck v. Van Ness, 11 Johns., 409; Noel v. Murray, 3 Kern., 167.) The delivery of the notes was, nevertheless, an acknowledgment at the time of an existing indebtedness,, from which the law would imply a promise to pay the residue of the debt so as to suspend the…
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