
    Elias C. Benedict and James H. Benedict Respondents, v. Joseph J. Slocum, Appellant.
    
      Statute of Limitations—an offer to give “ a due bill as an acknowledgment ” is sufficient— a promise to pay will be implied therefrom.
    
    Upon the trial of an action brought October 19, 1894, to recover upon an account alleged to have been stated bétween the parties on or prior to October 29, 1888, it appeared that prior to October 12, .1888, the accounts between the parties had been adjusted and that, on said day, the plaintiffs sent to the defendant for his signature promissory notes aggregating the amount at which the defendant’s indebtedness had been adjusted; that the defendant returned the •notes to the plaintiffs unsigned on October 29, 1888, inclosed in a letter stating, “I have thought over this matter'of the notes a great deal and if I knew I could pay them when they became due I wouldn’t hesitate. I cannot promise to do that. I am willing to make a due bill as an acknowledgment and which I shall feel just as much bound to pay when I am able.”
    
      Held, that the letter of October twenty-ninth was a recognition that there was then due the plaintiffs the; aggregate amount represented by the notes, and was a sufficient acknowledgment of that indebtedness under section 895 of the Code of Civil Procedure to take the case out of the six years’ Statute of Limitations, although it did not contain an express promise to pay the sum due;
    That an express promise was unnecessary, as a promise to pay would be implied from the acknowledgment of the debt.
    Appeal by the defendant, Joseph J. Slocum, from a judgment of the. Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county'of New York on the 21st day of April, 1903, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.
    
      Francis C. Reed, for the appellant
    
      John L. Hill, for the respondents.
   McLaughlin, J.:

The summons in this action was served on the defendant on the 19th day of October, 1894, and the action was brought to recover upon an account stated. The complaint alleged that on or prior- to the 29th day of October, 1888, an account was taken and stated between the parties and upon such accounting the defendant was found to be indebted to the plaintiffs in the sum of $12,586.64, which he then agreed to pay: The answer denied the material allegations, of the complaint, and, in addition thereto, pleaded the Statute of Limitations.

At the trial it appeared that prior to September 1, 1888, the defendant had certain transactions with the plaintiffs as stockbrokers and had, as they claimed, become indebted to them in the sum of $24,423.49, which indebtedness was represented by three different accounts — one. designated Slocum & Knowland for $10,782.55; one J. J. Slocum Special for $12,891.15, and a third J. J. Slocum for $749.79. Negotiations were had during September or October, 1888, for the purpose of adjusting the accounts and determining what amount the defendant should pay, and it was-finally arranged that he should pay his own account in full and in addition thereto one-half of each, of the others. Part of the negotiations was oral and part in writing. That part in writing is represented by a letter from the plaintiffs to the defendant, dated October 12, 1888, in which they said: “ In compliance with your request of October 6th, we enclose due bills for your account, separating the accounts of Slocum & Knowland, for which we enclose due bill for one-half of said amount. We have extended the due dates of these notes in a very liberal manner, considering the long delay, and when they are signed and returned to us we shall consider you absolved from the other half of the Slocum & Knowland joint accounts.” With this letter were inclosed five notes aggegating $12,586.64, each bearing date September 1, 1888, falling due at different times — the first one six months from date and the last January 1, 1889. The defendant did not sign the notes, but on being requested to return them either signed or unsigned, returned them to the plaintiffs unsigned on the 29th of October, 1888, and at the same time wrote them a letter in which he said: “ I have thought over this matter of the notes a great deal and if I knew I could pay them when they became due I wouldn’t hesitate. I cannot promise to do that. I am willing to make a due bill as an acknowledgment and which I shall feel just as much bound to pay when I am able.” At the trial the fact was uncontradicted that the notes referred to in defendant’s letter were the ones which' the plaintiffs had inclosed in their letter of October twelfth, and they were produced and offered in evidence. The defendant offered no evidence and at the conclusion of the trial, both parties having requested the direction of a verdict, one was directed in favor of the plaintiffs for the amount claimed with interest, and defendant has appealed.

I think the judgment should be affirmed. The letter of October 29, 1888 was' a recognition that there was then due the plaintiffs the aggregate amount represented by. .the notes inclosed in their ■letter of October 12, 1888 and was a sufficient acknowledgment of that indebtedness under section 395 of the Code of Civil Procedure. It is true the letter did not contain an express promise to pay the sum due, but such promise was unnecessary. (Manchester v. Braedner, 107 N. Y. 346; Shaw v. Lambert, 14 App. Div. 265; Fletcher v. Daniels, 52 id. 67; Brintnall v. Rice, 63 id. 54; affd., 173 N. Y. 618; Hodnett v. Gault, 64 App. Div. 163.) We have in the letter an acknowledgment of the debt, from which the law implies a promise to pay. The defendant expressed his .willingness to give a due bill instead of notes, and the fact that he did not a;ive. such due, bills in noway destroyed the acknowledgment that the aggregate amount of the notes was due. The letter, therefore, stands as evidence of. an acknowledgment of the debt, with an implied promise to pay it, and this is sufficient under the authorities above cited to take the case out of the Statute of Limitations, and the action was commenced within six years thereafter.

In Shaw v. Lambert (supra) in a letter written by a creditor to his debtor, the creditor asked whether “ You will pay' me the balance due me on account of the money I have loaned you,” to which, the debtor replied: I would prefer you make yourself a statement of your own. ,In my opinion all what I remember is those accounts were settled long ago. If not, I am willing to do so now.” It was held there was a promise by defendant to pay what was due upon the claim in case his recollection that it was settled was not correct, and the jury having found it was not correct he was liable. In Brintnall v. Rice (supra) the following statement in a letter by the debtor was held sufficient: Notwithstanding that you have done some very foolish talking, entirely uncalled for, I will see that you will be at no loss in the Lyons transaction.”

It follows, therefore, that the judgment appealed from must be affirmed, with costs.

Van Brunt, P. J., O’Brien, Hatch and Laughlin, JJ., concurred.

. Judgment affirmed, with costs.  