
    Harold Serrell, as Surviving Partner of the Firm of Lemuel W. Serrell, Respondent, v. Emma J. Forbes, as Administratrix, etc., of Francis Forbes, Deceased, Appellant.
    
      Waiver, by acceptance of costs given by an order, of the right to attack it — amendment of a complaint allowing a new defense barred by the Statute of Limitations to be set up -r- what acknowledgment of a debt is sufficient under section 395 of the Code of Civil Procedure.
    
    Where the court, at Special- Term, as a condition of granting a motion for an-amendment of the complaint, which amendment essentially changes the cause of action set up in the original complaint, requires the plaintiff to pay to the. defendant the'taxable costs of the action to date, the defendant, by accepting such costs and not taking a direct appeal from the order, will be deemed to have acquiesced in such order, and, upon an appeal from a judgment rendered against her after a trial of the action under the' amended pleading, she cannot, attack the order, which she has brought up for review by a statement of her intention so to do in the notice of appeal.
    • Quaere, whether the court may allow the complaint in an action to be amended, by setting up therein a cause of action barred by the Statute of Limitations, provided it does not deprive the defendant of her right to plead the Statute of Limitations as a defense.
    The following letter, written in response to a request made by one Serrell upon one Forbes for the-payment of a bill, to wit:
    “ Dear Mr. Serrell.— Yours of the 8th inst. received and will have my earnest attention. I consider myself responsible for this bill of Mr. Sachs.
    “Yours truly,
    “FRANCIS FORBES,"'
    
      is sufficient, under section 395 of the Code of Civil Procedure, to take the debt out of the operation of the Statute of Limitations, where it appears that, notwithstanding the language of the letter, Forbes was not a mere guarantor of a debt due from Sachs, but was himself primarily liable therefor. i
    Ingraham, J., dissented.
    Appeal by the defendant, Emma J. Forbes, as administratrix, etc., of Francis Forbes, deceased, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 29th day of October, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of October, 1904, denying' the defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 17th day of May, 1904, allowing the plaintiff to amend the summons and pleadings by striking out the name of Joseph Sachs as a party defendant.
    
      Charles T. Haviland, for the appellant.
    
      E. Walter Beebe, for the respondent.
   Hatch, J.:

This action was originally brought against Francis Forbes, the defendant’s intestate, an attorney at law, and one Joseph Sachs, on an alleged joint obligation to pay for certain professional services rendered to the defendants jointly by the plaintiff’s firin. The latter were engaged as patent solicitors and the services which form the subject of this action were averred to have been rendered in and about procuring patents upon certain inventions made by the defendant Sachs between the, 16th day of March, 1893, and August 9, 1895. The summons was served upon the defendant Francis Forbes on the 19th day of FTovember, 1900, and upon Sachs on the 21st day of November, 1900. Forbes served an answer denying the employment and averring that such services as the plaintiff’s firm had rendered were so rendered to the defendant Sachs and that he was not responsible therefor. Forbes died in 1904, and shortly thereafter the present defendant was substituted as his personal representative.

The action proceeded to trial, when the defendant made a motion to dismiss the complaint upon the ground that it did not show that an effort had been made to collect for the services from the defendant Sachs, or that he was not responsible and able to pay the same. Thereupon the plaintiff made application to withdraw from the trial for the purpose of making a motion to amend his complaint. Such permission was given, and thereafter he moved at Special Term for an order granting leave to amend ¡the summons and complaint by striking out Sachs as a party defendant and charging the defendant Forbes as solely liable for the services that had been rendered. . The motion was opposed by the defendant upon the ground that it would be permitting the plaintiff to set up a new and differ ent cause of action and also one that was barred by the Statute of Limitations. The r.elief asked for was granted upon payment by plaintiff to the defendant of the taxable costs up to that date. Thereupon the plaintiff made, compliance with the terms of the order by serving an amended summons and complaint and paying the costs provided for therein. The defendant accepted the amended pleadings and the costs and took no appeal from the order. She served an answer to the amended complaint, interposing substantially the same defense as in the prior answer and, in addition thereto, pleaded that the plaintiff’s cause of action was barred by the Statute of Limitations.

It may be that the court had no power to authorize the amendment which it granted, as it essentially changed the cause of action by substituting therefor an entirely new and different claim against a different party. ' Such objection, however, is not now available to the defendant, for the reason that she received, accepted and retained benefits derived from the order; and must, therefore, be deemed to have acquiesced therein and to have waived her right to question the same. (Cullen v. Uptegrove & Brother, 101 App. Div. 147.) The defendant, under the amendment, was not deprived of her right to plead the Statute of Limitations as a defense. (Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y. 647.)

The evideiice given upon the trial and the inferences arising •therefrom were somewhat conflicting, and the jury would have been authorized to find that the obligation assumed by Forbes’ was simply as guarantor for the payment of the debt of Sachs incurred by the services rendered. There was also evidence authorizing the jury to find that, on the contrary, an original obligation was entered into by Forbes to pay for the services which were to be rendered by the plaintiff’s firm. In the conversation which was had between the parties at the time of the employment, Sachs was not present, nor was he mentioned save as a man having some inventions which Forbes desired to have patented, and his undertaking at that time ivas to be responsible for the payment for such services as the plaintiff’s firm might render. Various items of evidence and circumstances were presented by the parties bearing upon this subject sufficient, we think, to make such question one of fact for the jury. Upon this issue the court submitted it to the jury as a question of fact under a very full and complete charge. The jury found that the obligation assumed by Forbes was primary, as the court charged in express terms that, unless they so found, the plaintiff was not entitled to recover and the defendant was entitled to a verdict. We think the evidence was sufficient to authorize the jury so to find, and that no error was committed in this respect which requires a reversal of the judgment.

The defendant claims that the evidence justified a finding that the cause of action was barred; and if the case be considered alone upon proof as to the particular dates upon which services were rendered or payments made as claimed by the plaintiff, it would doubtless have presented a question of fact for the jury as to whether the statute had run. And as to such question, error would have been committed, as the court upon request refused to submit such question to the jury and held, as matter of Jaw, that the ease was removed from the operation of the statute by reason of the acknowledgment of the debt by defendant’s intestate, assuming that the statute had run.

For the purpose of the disposition of the present appeal, we assume, therefore, that the proof was insufficient to show that the services were rendered or payments made upon the bill within a time to prevent the running of the statute. We are thus brought to a consideration of the letter of Mr. Forbes, as a sufficient acknowledgment of the debt and promise to pay to take the case out of the statute, within the provisions of section 395 of the Code of Civil Procedure. Upon this subject proof was given that under date of January 8, 1895, the plaintiff’s firm wrote to Francis Forbes the folio wins: letter:

“ Dear Mr. Forbes.— In making up my bills for the last year I find that the matter of Mr. Sachs has remained stationary, with over $700 coming to me. Quite a large portion of this has been money paid out for work done by employees, besides considerable cash. Of course, I did not undertake to get Mr. S. upon his feet or to introduce his inventions, but I have said nothing specially about this account because I knew that the matter had not progressed as you anticipated. Please let me know what you can do in this matter as my finances are crippled by several matters that are delayed,
“ Yours truly,
“ LEMUEL W. SERRELL.”
To this letter Mr. Forbes replied under date of January 12,1895 :
“ Dear Mr. Serrell.—Yours'of the 8th inst. received and will have my earnest attention. I consider myself responsible for this bill of Mr. Sachs. Yours truly,
, “FRANGIS FORBES,”

There can be no question but that the language of the letter of Mr. Forbes constitutes an acknowledgment of the debt to which his attention has been called, and there is nothing therein .inconsistent with an intention on the part of the writer to pay it. This would seem to make it a sufficient acknowledgment to remove the claim from the operation of the statute within Manchester v. Braedner (107 N. Y. 346), and it was made under such circumstances .as fairly imply a promise to pay.' This seems to be, therefore, a sufficient compliance with the terms of the statute. (Connecticut Trust & S. D. Co. v. Wead, 172 N. Y. 497.) The acknowledgment is not inconsistent with the claim that Mr' Forbes was a mere guarantor of the debt, and that the primary obligor was Sachs. But the jury having found upon sufficient evidence for that purpose that the primary obligation was that of Forbes, this letter must be considered as an acknowledgment of his debt, and it is susceptible of such construction. The court was, therefore, correct in holding and charging the jury that this acknowledgment 'operated to take the claim out of the bar of the statute. This holding was in harmony with the charge which the court had made, that unless the obligation Of Mr. Forbes at the inception of the employment was primary Upon his part, there could be no recovery in favor of the plaintiff in the action.

These views dispose of all the material questions raised, and we find no others which require comment. It follows, therefore, that the judgment and the order denying motion for a new trial should he affirmed, with costs, and the appeal from the order permitting amendment of the summons and complaint dismissed, without costs.

O’Brien, P. J., Patterson and McLaughlin, JJ., concurred; Ingraham, J., dissented.

Appeal from order dismissed, without costs ; judgment and order affirmed, with costs.  