
    William H. De Camp, Resp’t, v. John E. McIntire, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 8, 1889.)
    
    1. Motions and orders.
    Plaintiff, at trial, asked leave to amend complaint by change of cause o£ action, and an order was entered allowing Mm to move at special term for leave to amend, and that if he failed “ the complaint be dismissed, with costs, as moved by the defendant at the trial.’’ Held, that this did not mean that he consented to a nonsuit without right of review, but that if plaintiff failed both parties were 10 be put in the original position, with right to plaintiff to appeal.
    2. Evidence — Statute oe limitations.
    Where the question at issue was whether a payment was made upon a, note in suit, so as to save it from the bar of the statute, or upon another claim, Held, that evidence to show what the “ claim ” mentioned in a receipt acknowledging payment of a sum “ to be credited on account of' moneys paid on tue claim as against ” the defendants really was bore directly on the main issue, and was admissible.
    Appeal from judgment of supreme court, general term, first department, setting aside an order denying a motion on behalf of plaintiff to amend his complaint, and dismissing the complaint, sought to be alnended.
    
      W. B. Hornblower, for app’lt; James Fox, for resp’t.
    
      
       Affirming 8 N. Y. State Rep., 468.
    
   Finch, J.

We do not think that the circumstances of the trial put the plaintiff in the attitude of consenting to the judgment of nonsuit rendered against him, or debar him from assailing that, judgment as erroneous. When the motion was made it seemed likely to be successful, upon the ground that the note upon which he sued was barred by the statute of limitations, and the plaintiff thereupon asked leave to amend his complaint by substituting _ as his cause of action his claim for lumber sold and delivered, which he declared to have been the original consideration of the note. Thereupon an order was entered, which appears in the judgment roll, that on payment of certain costs the plaintiff have leave to withdraw a juror, and move at special term for leave to amend his complaint. The order further provided “ that in case the plaintiff shall fail to make such motion within ten days after service upon his attorney of a copy of this order and notice of entry thereof, or in case such motion shall be duly made and denied, that the complaint be dismissed, with costs, as moved by the defendant at the trial.” A juror was accordingly withdrawn, and the plaintiff made his motion, which was denied, and judgment ordered dismissing his complaint. From that judgment he appealed, and the general term reversed it for error in the rejection-of evidence, and the defendant appealed to this court, insisting that the plaintiff could not review the judgment because he accepted its rendition as one of the conditions of the withdrawal of a juror and the permission granted him to move for an amendment of his complaint. We do not think that is a fair construction of the orde"r. The condition was, not that he should consent to a nonsuit or be bound by it without right of review, but that it should be granted, “as moved by the defendant at the trial.” The purpose seems to have been to give the plaintiff opportunity for his motion, but if he failed both parties were to be put in their original position as if no juror had been withdrawn, and the nonsuit be granted as if the trial had ended in that manner and at that point. The defendant was thus at liberty to enter his judgment and the plaintiff to question it on appeal, if he should see fit

This brings us to the alleged errors in the rejection of competent and material evidence. To appreciate them properly, it is necessary to understand the issues presented for trial. The complaint counted" upon a note made by defendants to plaintiff’s order, dated November 10, 1877, and alleged that no part thereof had been paid, except the sum of $278.11, on or about February 12, 1880. The answer denied “ that any sum was ever paid by the defendants, or either of them, as part payment of said note, or on account of it.” The denial is not of the alleged payment of $278.11, but of its payment on the note. And the meaning of this denial is made quite plain by the added defense that the plaintiff for a good and valuable consideration agreed, on or about February 12, 1880, to accept the said sum of $278.11 in full satisfaction and discharge of the claim against defendant, “which was the sole and only consideration of said note.” The pleadings were verified, and they disclose that no issue was raised over the fact of a payment ■ of $278.11 at the date alleged, but over the question whether that conceded payment was made on the note, as the plaintiff alleged and the defendant denied, or whether it was made as an accord and satisfaction, as the defendant alleged, and the fact one way or the other was very material, in view of the defendant’s plea of the statute of limitations. In that state of the pleadings the plaintiff put in evidence a receipt or agreement signed "by the defendant, dated February 12, 1880, the day on which the payment was made. That acknowledged the receipt from plaintiff of a discharge of his mechanic’s lien on the depot of the Second Avenue Railroad Company, the same to be returned to him within a reasonable time, or “in lieu thereof the sum of $278.11 to be received from the railroad company in settlement and discharge of said lien from record as against the owner, and to be credited on account of moneys paid on the claim as against the contractors, John E. and James Mclntire and William Warren, the balance to be settled hereafter,” etc. This receipt showed that the $278.11 concededly paid plaintiff was so paid not only in discharge of the lien, but on account of a claim which plaintiff had against the defendants and Warren, a balance of which remained unpaid; but what it did not show was that the claim was the identical demand' represented by the note, and so the payment was upon the note. The answer admitted that identity, but did so as part of a plea of accord and satisfaction which the plaintiff feared to admit by reading that part of the answer in evidence, and so he sought to establish the identity of the claim on which the money was paid with the note. While on the stand as a witness the plaintiff was asked “what is the claim referred to as against the contractors, John E. and James Mclntire?” He answered, “the balance due from the note.” The defendant moved to strike out the answer, which motion was granted and the plaintiff excepted. He was. asked again “what was meant by the claim referred to in exhibit B?” which question was excluded under exception. These rulings were erroneous. A fact and not an opinion was sought, and that fact one which bore directly upon the principal issue in the case. The importance of the receipt and agreement lay not in its sufficiency to establish a written promise to pay the debt so as. to save it from the bar of the statute. It may be, as the appellant, contends, that it was insufficient for that. But it ténded to prove; that the payment made was, in truth, a payment upon the debt which the note represented if the identity of that claim and the; consideration of the note was established, and the effect of such payment would save the statute. It must be assumed that the nonsuit was granted on the ground that the note was barred, but. if plaintiff showed a payment upon it in 1880 the nonsuit would have been wrong and the excluded evidence would have completed the chain of proof in that respect.

The order of the general term should be affirmed, with costs, and judgment absolute be entered against the defendant upon his. stipulation.

All concur.  