
    Ephraim Howe, Resp’t, v. James P. Welch, App’t.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 6, 1886.)
    
    1. Statute oe Limitations—Code Crv. Pito., § 390.
    Where under Code of Civil Procedure, section 390, the defendant relied on the defense that an action against him on the note in suit was harred by the statute of limitations of the state of Iowa, the court properly guided its determination by the decisions of the Iowa supreme court.
    - 2 Iowa statute—Statute of befóse.
    According to those decisions where a debtor excuses himself from paying a debt, alleging inability, it is Held that from the admission of inability and the implied willingness to pay, there may be deduced an implied promise to pay, which revives the original indebtedness. There is an apparent intention, however, to construe the statute as one of repose and to hold that if there be accompanying circumstances which repel the presumption, of a promise, the demand is not taken out of the operation of the statute.
    3. Same—When statute of New Yoke State applies.
    In case the debt was barred by the Iowa statute, no action could be maintained in this state, but if the debt was not barred in Iowa the statute of limitations of New York might nevertheless be a bal.
    
      Stickney & Shepard, for resp’t; Abbot Bros., for app’lt.
   Van Hoesen, J.

At the trial, the defendant said that he would rely solely upon the statute of hmitations of" the state of Iowa, for his defense. In his answer, he had pleaded a discharge from liability under section 390 of the Code of Civil Procedure, and there was perfect harmony, therefore, between his plea and the position that he took at the trial. The sole question to be tried was, whether or not, in a court of. the state of Iowa, an action against the defendant upon the note, would have been barred by the statute of hmitations of Iowa. In determining that question, the city court very properly guided itself by the decisions of the supreme court of Iowa, in exposition of the statute of that state. Sedgwick on Statutory and Constitutional Law, 425. I have looked at the cases cited by counsel in 3 Iowa and 51 Iowa, and also at a case in 55 Iowa, and I find that where a debtor merely excuses himself from paying the debt, by asserting that he is unable to pay it, the courts of Iowa have refused to draw the conclusion that he is unwilling to pay, but rather have inferred that he desires to pay; and from the admission of habihty, and the imputed willingness to pay, they have deduced an implied promise to pay, which, according to the Iowa law revives the original indebtedness. It must be observed, however, that it is apparent from the case in 55 Iowa, that the supreme court of the state intends so to construe the Iowa statute, as to bring their decisions into harmony with the policy that has lately governed the courts of other states in expounding the statute of limitations. That policy I understand to be, to treat the statute as a statute of repose, and to hold, that if there be accompanying circumstances that repel the presumption of a promise, or an intention to pay, or if the expression be vague, equivocal and indeterminate, or if it be apparent that the debtor contemplated á compromise with the creditor, or if there is room for a difference of opinion as to whether or not the debtor intended to pay the claim just as the creditor presented it for payment, the demand is not taken out of the operation of the statute. But the conclusion that the city court arrived at is, in my opinion, fully warranted by the decision in 3 Iowa Bep.

In order to prevent misunderstanding in the future, I deem it proper to say, that but for the determination of the defendant to stake his case upon the efficiency of the Iowa statute as a bar, the courts of New York, after deciding that that statute had not run would have tested the defendant’s liability, by the lex fori, the statute of limitations of the state of New York. In other words, if the debt were barred bv the Iowa statute, no action could be maintained in a court of this state; but if the debt were not barred in Iowa, the statute of hmitations of the state of New York might nevertheless have been a bar in this action.

Judgment affirmed, with costs.

Larremore, 0. J., and Daly, J., concur.  