
    Rufus Heaton, Resp't, v. Theodore M. Leonard, App'lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 9, 1893.)
    
    1. Limitation—Acknowledgment—Check offered in compromise.
    A check offered by way of compromise, for less than the amount claimed and more than is conceded to be due, is not such an unqualified acknowledgment of the debt as is required to take it out of the statute of limitations.
    2. Same.
    
      Qumre, whether a check, which is merely offered and not accepted, is a writing within the meaning of § 395 of the Code.
    Appeal from judgment of special term, affirming judgment of a justice’s court in favor of plaintiff, the appeal from the justice’s court being certified to the supreme court on account of the disqualification of the county judge.
    
      Shedden & Booth (John H. Booth, of counsel), for app’lt; E. C. Everest, for resp’t.
   Putnam, J.

This action was brought in justice’s court on an alleged account amounting to $29.14. The defense asserted by defendant was a general denial and the statute of limitations. During the trial plaintiff withdrew one item of five dollars. The account accrued over six years before the commencement of the action, but within six years defendant offered plaintiff a check for $24.14, signed by him, in settlement of the claim, and although plaintiff refused to receive it, he claims it was a sufficient acknowledgment in writing to take the case out of the statute of limitations.

The testimony in the case was probably sufficient to sustain the judgment of the justice, unless the defense of the statute of limitations was well taken.

The question is whether the check given by defendant to plaintiff was a sufficient acknowledgment in writing to constitute a new and continuing contract, so as to prevent the statute of limitations from running against the claim in suit, within § 395 of the Code of Civil Procedure, the check being merely offered to plaintiff, and not delivered, in consequence of his refusal to accept it.

Prior to the Code of Procedure and the present Civil Code, it was held that to revive a demand barred by the statute there must be an express promise to pay either absolute or conditional, or an acknowledgment of the debt as subsisting, made under such circumstances that such a promise may be fairly implied. Wakeman v. Sherman, 9 N. Y., 91; Bloodgood v. Bruen, 8 id., 362; Sands v. Gelston, 15 Johns., 519.

Under said Codes the same acknowledgment has been held necessary to take a case out of the operation of the statute of limitations as before, except that the acknowledgment must now be in writing. Shapley v. Abbott, 42 N. Y., 447.

The check, however, which the plaintiff claims is a sufficient acknowledgment in writing to save his claim, appears by the evidence to have been tendered by the defendant in the way of a compromise. Defendant testified that he told plaintiff when he tendered the check' that it was more than he (defendant) owed him (plaintiff). This is not contradicted, plaintiff testifying that defendant did state “it is more than I owe you.” It does not appear how much greater defendant claimed the amount of the check was than the sum for which, in fact, he was indebted to plaintiff. It seems, therefore, that the amount due plaintiff was in dispute. The check was offered in the way of a compromise, for less than the amount claimed by plaintiff, and more than defendant conceded due, and hence was not such an unqualified acknowledgment of the debt as required by the authorities. Allen v. Webster, 15 Wend., 288-289; Sands v. Gelston, 15 Johns., 511; Creuse v. Defiganiere, 10 Bos., 122.

It is also doubtful whether under the circumstances the check can be deemed “ a writing ” within the meaning of § 395, supra. It was offered by defendant to plaintiff, but not received, and hence never had any legal inception or delivery. It was the same as if the defendant, after writing the check, had left it in his check-book. Many cases might be cited where debts have been revived by letters or writings delivered to the creditor or his agent, and in certain cases to third persons. But my attention has not been called to any authority holding that a check or-paper written, but never delivered to either the creditor or any other person, a paper that never had any legal inception, was “ a writing ” within § 395, supra. In De Freest v. Warner, 30 Hun, 94, the written acknowledgment was contained in a deed delivered to and accepted by the grantees. In Manchester v. Braedner, 107 N. Y., 346; 12 St. Rep., 263, the defendant delivered to the plaintiff orders on third persons. As if in this case the check had been delivered to and retained by plaintiff. In McCahill v. Mehrbach, 37 Hun, 504, the defendant sent a letter to the plaintiff acknowledging the debt. In Morrow v. Morrow, 12 Hun, 386, the executor inserted in the inventory sworn to by him and filed with the surrogate a note he had theretofore executed to his tes • tator. In Anderson v. Subley, 28 Hun, 16, the parties executed an agreement to arbitrate, and on such arbitration to waive the statute, of limitations. The defendant afterwards revoked the arbitration. Many other similar cases might be referred to. In all that I have examined the letter, paper or writing held to be “ a writing ” sufficient to prevent the operation of the statute of limitations had been delivered to some person. It was not a paper merely offered by the debtor, and which in fact had never left his possession.

I am in doubt, therefore, whether the check in question, which was merely offered and not accepted, was “ a writing ’’ within the meaning of § 395 of the Civil Code. But for the reason first stated, the judgment should be reversed, with costs.

Math am, P. J., and Herrick, J., concur.  