
    Oscar Compton, Resp’t, v. Henry E. Bowns, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed October 2, 1893.)
    
    
      I. Appeal—Case.
    A question of law upon uncontradicted evidence is raised by an exception to the ruling of the court, and to present that question on appeal from the city court it is not necessary that the case should purport to contain all the evidence.
    2. Limitation—Payment.
    A payment made and intended as of the whole amount due and in discharge of the entire indebtedness, is ineffectual as part payment to defeat the operation of the statute of limitations.
    3. Same—Mutual account.
    An account of items upon one side and payments merely upon the other is not a mutual account.
    4. Same.
    Payment of the ascertained balance of an account in settlement of the dealings between the parties does pot constitute an item of account from which the statute of limitations begins to run, within § 386, Code of Civil Procedure.
    Appeal from judgment of the general term of the city court of Hew York, affirming judgment on verdict.
    Action on an account for balance of commissions on sales of cargoes of coal for defendant
    The case appears in the opinion.
    
      James L. Bishop, for app’lt; Hyland & Zabriskie, for resp’t.
   Pryor, J.

Upon the conclusion of plaintiff’s evidence the defendant moved to dismiss the complaint on the specific ground that the claim in suit was barred by the statute of limitations ; and again, at the close of the case, for the same reason, he requested the direction of a verdict in his favor.

To enable us to determine whether, in denying the motions, the court below committed legal error, it is not necessary that the record should purport to contain all the evidence. Remsen v. Wheeler, 3 Silv. Ct. App., 43; 31 St. Rep., 385; Halpin v. Ins. Co., 118 N. Y., 165 ; 28 St. Rep., 788. The exception to the denial of the motions duly presents the question for adjudication. Turner v. Weston, 133 N. Y., 650, 651; 45 St. Rep., 301.

It is conceded that the statute of limitations is a conclusive-answer to the action, unless the defense be obviated by the payment on the 7th of June, 1882. The legal effect of that payment is the solitary question before us.

Treating the payment as on account of a claim against which the statute was running, its inefficacy to prevent the bar is plainly apparent. By the uncontroverted evidence the paymen t was of the balance of account between the parties, and was intended by the defendant in full settlement of his entire indebtedness to the-plaintiff.

“ The account on February 15th stood to his credit $359.54. I added interest to June 7th $6.78, which made $366.42. I gave-him a check on June 7, 1882, adding interest from February 15th ; the amount was $366.42. This closed the whole business.” To the same effect is the testimony of the plaintiff himself. “ I received a sum of money from him by check dated June 7, 1882 ; $366.42; that sum was the balance shown by his account * * *" just the sum which Mr. Bowns admitted to be due to me.”

It is elementary law that the effect of part payment in defeating the operation of the statute of limitations depends upon the-promise it implies to pay the residue; but if the payment be intended, not as a discharge pro tanto, but as a complete liquidation of the entire demand, how can an engagement to pay more be inferred? The implication of an acknowledgment of the continuance of the debt from an act supposed and designed to extinguish it, and of a promise of further payment from a payment made and intended as final and complete, is a palpable absurdity. Arnold v. Downing, 11 Barb., 554; Harper v. Fairley, 53 N. Y., 442; Sands v. Gelston, 15 Johns., 511 ; Hale v. Morse, 49 Conn.,. 481; Weston v. Hodgkins, 136 Mass., 326; Parsons v. Clark, 59 Mich., 414; Wood on Lim., § 97; Buswell on Lim., § 77.

Apprehending the force of the foregoing argument, the respondent seeks shelter under § 386 of the Code of Civil Procedure;, but this provision is as ineffectual as § 395 to rescue his claim from the operation of the statute. For, in the first place, the-account, consisting apparently of debits on the one side and payments on the other, is not the mutual, open and current account, where there have been reciprocal demands between the parties,”' contemplated by the statute, Green v. Dishrow, 79 N. Y, 1, and, in the second place, if it be such an account, still the payment relied on to defeat the statute being in discharge of the balance upon a closed account, and in final settlement of the transactions-between the parties, cannot, in the nature of things, be that “ item. ” in “ an open and current account ” from which the cause ■of action accrues and the statute of limitations begins to run. The proposition is so self-evident as to dispense with argument to •elucidate and sustain it. It is an inevitable corollary from the reason of the rule of limitation applicable to mutual accounts. Green v. Disbrow, 79 N. Y., 1, 10; Gunn v. Gunn, 58 Am., 447, 454.

Judgment reversed and a new trial ordered, costs to abide the -event.

BookstAVER and Bischoff, JJ., concur.  