
    Henry Kahrs, Appellant, v. The City of New York, Respondent.
    
      Statute of Limitations — application of., to a salary warrant issued by Long Lsland Oity, in an action thereon against the city of New York — an acknowledgment of a debt must be coupled with a promise to pay it.
    
    The liability of the city of New York, under sections 4 and 5 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466), upon a salary warrant issued by Long Island City on December 31, 1895, is identical with that which would have existed against Long Island City if there had been no consolidation.
    An action begun May 15, 1902, against the city of New York to recover on such a warrant is, consequently, barred by the six years’ Statute of Limitations.
    An acknowledgment of the existence of a debt, not coupled with a promise to pay the same, will not preclude the debtor from setting up the defense of the Statute of Limitations.
    Appeal by the plaintiff, Henry Kahrs, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 19th day of January, 1904, upon the decision of the court rendered after a trial at the Queens County Trial Term, a jury having been waived, dismissing the complaint upon the merits.
    
      Louis Z. Kinsiler [Max Friedman with him on the brief], for the appellant.
    
      James D. Bell [ John J. Delany with him on the brief], for the respondent.
   Jenks, J.:

The sole question tried was whether the six years’ Statute of Limitation, pleaded by the defendant, applied. The court held with the defendant and dismissed the complaint upon the merits. On December 31, 1895, plaintiff’s indorser received a salary warrant from Long Island City, which was thereafter duly presented for payment, but payment was refused. This action upon the warrant was begun on May 15, 1902. The appellant contends that the consolidation of Long Island City with other municipalities in the formation of the present city of New York created a new obligation on the part of that city to pay this and all other debts of Long Island City. Such liability arises from legislative enactment and is measured and limited by the terms thereof. (Mount Pleasant v, Beckwith, 100 U. S. 514, 524; Dillon Mun. Corp. [4th ed.] § 189.) I am of opinion that the liability of the city of New York in the premises is that which would have existed against Long Island City if there had been no consolidation. Section 4 of the Greater New York charter provides that the valid and lawful charges and liabilities of the incorporated municipal or public corporations which, but for the charter, would be charges and liabilities against the same, are to be deemed and taken to be like charges and liabilities against the city of New York, and shall accordingly be defrayed and answered unto by it to the same extent and no further than the said several constituent corporations would have been bound if the charter had not been passed. Section 5 provides that the laws creating any debt or debts of the said municipal and public corporations shall, remain in full force and that the obligations and liability of The City of New York, as the successor of municipalities and public corporations consolidated into it, shall be the same as, and not otherwise greater than, the respective obligations and liabilities of the several constituent corporations, and that The City of New York shall succeed to all of their rights as well as to their obligations and liabilities in respect thereof, except as herein otherwise specially provided.” This scheme is not affected by section 8, inasmuch as the transfer therein provided for is in consideration of the foregoing provisions whereby The City of New York, as hereby constituted, assumes as aforesaid, the valid debts, obligations and liabilities” of the said municipal corporations. (The italics are mine.) If there had been no consolidation, and this action had been begun against Long Island City, clearly it could have pleaded the statute. I find nothing in the stat- ■ utes which precludes its successor from such defense. (Thompson v. Sickles, 46 Barb. 49, 55 ; 19 Am. & Eng. Ency. of Law [2d ed.], 184.) The learned counsel for the appellant in his points writes: It is also admitted that when the Greater New York Charter went into effect, the warrant set forth in the complaint was and is a valid debt, existing against the former Long Island City, and now existing against The City of New York,’ and that defendant assumed and became obligated to pay same (fols. 11, 15, 36. Quotation is from defendant’s answer at end of folio 15),” and insists that “ Upon these admissions plaintiff was clearly entitled to the judgment asked for in his complaint.” Folio 11 refers to the complaint that “ there is now due and owing thereon from the defendant to this plaintiff the sum of $68.21, with interest thereon from January 1st, 1896,” and, “ Sixth. That in and by the provisions of Chapter 378 of the Laws of 1897, and the several acts amendatory thereof and supplementary thereto, known as ‘The Greater Yew York Charter,’ the said City of Yew York, the defendant herein, assumed and became obligated to pay the valid debts existing against the said former Long Island City, among which was and is this claim.” Folio 15 refers to part of the answer, which reads: “ It denies that it has any knowledge or information sufficient to form a belief as to any of the allegations contained in the paragraphs of the complaint marked ‘ Third,’ ‘ Fourth,’ and ‘ Fifth,’ and the allegation contained in the paragraph marked ‘ Sixth,’ that the claim set forth in the complaint was and is a valid debt, existing against the former Long Island City, and now existing against The City of Yew York.” Folio 36 refers to the trial, whereof the record reads: “ Defendant’s Counsel — We admit all the allegations contained in the complaint of the plaintiff in this action. The only question is, is the claim set forth in said complaint outlawed? We claim it is. Plaintiff’s Attorney — I admit that this action was commenced on May 15th, 1902. A jury trial was thereupon waived by both parties in open court, and it was agreed between counsel for both sides that the only question in the case was whether, as a matter of law, the cause of action set forth in plaintiff’s complaint herein accrued more than six years prior to the commencement of this action.” Thus it is seen that the defendant denied the material allegations of the complaint and it is clear enough from the context that the admission in the record was simply designed to dispense with the formal proof of the facts. The record shows that both parties thereupon agreed that the only question was that of law, namely, the application of the Statute of Limitations, and it cannot be presumed that theretofore and almost in the same breath, the defendant had admitted absolute liability, despite the statute. But even assuming that the defendant acknowledged the debt, that is not enough to preclude it from its defense. In Danforth v. Culver (11 Johns. 146) the court say: “ The evidence to take this case out of the statute is, that the defendant, when the notes were shown to him, ‘admitted that he executed them, but observed that they were outlawed, and that he meant to avail himself of the statute of limitations.’ Even if we were to admit the authority of all the adjudged cases on the point, in the English courts, we should not think this to be such an acknowledgment of .the debt as would authorize the jury to presume a new promise. It was for a long time held in England that an acknowledgment of a debt, without a promise to pay, was not enough to deprive the defendant of the benefit of the statute. * * * In the case of Jones v. Moore (5 Bin. Rep. 573) the counsel for the defendant, arguendo, observed, that ‘if an acknowledgment operated by revival of the original debt, then it would answer, though accompanied by an express refusal to pay, which was contrary to the opinion of the present chief justice, in Murray v. Tilly, and of Judge Washington in Reide v. Wilkinson..’ Tilghman, Ch. J., in the same case says : ‘When the defendant iileads non assumpsit infra sex annos, and the plaintiff replies assumpsit imfra sex annos how can the issue be found for the plaintiff without proof of a promise, express or implied, within six years ? ’ And Yeates, J., says : ‘ Where it ’ (the acknowledgment of the debt) ‘ is accompanied by circumstances or declarations, that the party means to insist on the benefit of the statute, no promise can possibly be implied, without violating the truth of the case, and so it has been decided.’ ” This case is cited in Allen v. Webster (15 Wend. 284, 288); Bridge v. Johnson (5 id. 342, 352). (See, too, Purdy v. Austin, 3 Wend. 187; Sands v. Gelston, 15 Johns. 511, 519.) The Statute of Limitations affects the remedy. (Waltermire v. Westover, 14 N. Y. 16, 20.)

The case is not within the rule of Coster v. Mayor (43 N. Y. 399) and the other cases cited with it. In Ooster's case the city assumed the liability of the State, and covenanted to pay and to indemnify (pp. 409, 411). There has been no voluntary act of assumption or any covenant on the part of the defendant to pay this obligation and none is to be implied whereby any new contract relation arose between the plaintiff and the city of New York so that the city could not avail itself of the defense interposed in this action. Practically, consolidation worked no hardship upon the plaintiff, for the valid debts of Long Island City remained the valid debts of the city of Yew York, as if consolidation had not been. We gather from the pleading that the debt became due on December 31,1895. The liability was continued and cast upon the city of Yew York, and there remained for four years, during which time this defense would not have availed this defendant.

The judgment should he affirmed, with costs.

All concurred.

Judgment affirmed, with costs. 
      
      See Laws of 1897, chap. 878, as amd. by Laws of 1901, chap. 466.— [Rep.
     