
    Robert Hughes, Respondent, v. Eddy Valve Company, Appellant.
    Third Department,
    November 15, 1911.
    Contract, of employment, modification of—Statute of Limitations — part payment.
    Where a contract of employment made in 1890 to commence January 1, ,1891, obligated the employer to pay the employee in addition to his weekly wages the annual sum of $300, payable quarterly in advance, and subsequently and in December, 1893, the employer notified the employee that he would no longer continue the annual payments of $300, and the employee, while not assenting in words to the reduction, neglected to state that he would not submit thereto, and continued in his employment until the year 1910, receiving payment at the reduced rate, the contract of employment must be deemed to have been modified by consent of parties. In any event, no recovery can be had by the employee against the employer for any of the annual payments of $200 except those which became due within six years prior to the commencement of the action.
    In determining whether a particular part payment made by a debtor to his creditor is effectual to remove the entire indebtedness from the opera- . tion of the-Statute of Limitations, the creditor’s intent in receiving the part payment is immaterial, the determining factor being the debtor’s ' intent in making it.
    In order to make a payment a part payment within the Statute of Limitations the burden Is upon the creditor to show that it was a payment of a portion of the admitted debt and that it was paid to and accepted by him as such, accompanied by circumstances which amounted to an absolute and unqualified acknowledgment by the debtor of more being due from which a promise may be inferred to pay the remainder.
    Evidence offered for the purpose of showing part payment of a debt and the consequent removal of the entire indebtedness from the operation of the Statute of Limitations examined, and held,, insufficient for that purpose.
    Betts, J., dissented.
    Appeal by the defendant, the Eddy Valve Company, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 14th day of June, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of June, 1911, denying ¿he defendant’s motion for a new trial made upon the minutes. .
    
      Edgar T. Brackett, for the appellant.
    
      John Scanlon, for the respondent.
   Kellogg, J.:

This judgment is wrong upon the law and the facts. In December, 1890, the plaintiff made a contract with the defendant whereby he was to remain in its employment on the following terms: Commencing January 1, 1891, the company to pay $25 per week for fifty-nine hours labor; all lost time to be ‘deducted at that rate and thirty cents per hour for actual overtime allowed. It was also to pay the sum of $200, payable in quarterly payments- of $50 each in advance. He continued to work,-and in December, 1893, he was told that the company could not pay him any longer the $200 per year, but would continue the other payments and allow him ten days vacation at the expense of the company. He made no dissent.

In July, 1894, his attention was called to the fact that the bookkeeper was charging his lost time against him, and he was asked his pleasure with reference to it. He said that he had rather have the lost time deducted and the equivalent given to him at the end of the year. It was understood that $50 was to be allowed. Thereafter it gave him and he. accepted $50 at at the end of the year, about Christmas time, This was paid annually until January, 1908, when he was informed that, the company could not afford to pay him the $50 a year longer. He was then about sixty-nine years old. He made no dissent. There is no substantial dispute about this last conversation, which plaintiff concedes was in January, 1908. He remained in the company’s employ .without any dissent, receiving only the weekly wages thereafter until September, 1910, when he quit the employment and brought this action, and by the judgment has recovered the.$200 a year for about seventeen years, less $50 per year deducted as payments thereon from January 1, 1903, to January, 1908.

There is no substantial dispute about the facts. Any dispute is merely a verbal one, but the main facts that he was informed in 1893 that the $200 would not be paid longer; that he remained thereafter without dissent; that in 1894 when it was discovered that his lost time was being charged to him it was agreed that $50 was to be paid in lieu thereof at the end of each year; that settlements were thereafter made pursuant thereto; that in 1908 he was told that the $50 would not be paid any longer and that he continued at work without objection, are entirely undisputed. He says that when he was told the company did not.want to pay the $200 any longer his answer was, “I will see about it,” and when asked why he continued to make settlements from year to year with the $200 deducted he says: “I understood that he didn’t want to pay it. Q. And wasn’t-going to ? A. Well, sir, that was another question whether he would. No, sir, I did not understand that he was not going to pay it any more; that he didn’t want to pay; he didn’t pay it to me any more. From that time until the time I quit in 1910, or about that time, I never made any further claim for the $200 at all. I just went on receiving the weekly pay, getting about holiday time $50 a year. * * During the eighteen or

nineteen or twenty years prior to the time of my employment ceasing, I didn’t make claim for this $150 a year and collect it because I had every confidence in the-Eddy Valve Company, that they were in good standing, and that my money was safe, more so perhaps than in many of the banks. It was in' good standing. And I thought if I made any claim that it would conflict and perhaps be the cause of my leaving, and I was not circumstanced to leave. * * * I have no reason for not finding out what they understood about it, only every confidence in the company; I didn’t find out what they understood, because I didn’t want any misunderstanding. * * * I preferred to stay, even if they did not understand that they were owing me anything for this $200 a year. I had it in mind that if I said they were not paying me this $150 a year, and that they owed me the balance of $150 a year, that they would not keep me, perhaps that they would — from what Mr. Thomas Knickerbocker said, that that was more than they were willing to pay, and therefore I kept still about it. * * * I said to Mr. John Knickerbocker when he came home that Mr. Rogers had when he paid me the last installment said that his father, Mr. Thomas Knickerbocker, wanted to discontinue the $200 and he made the reply, I suppose, Mr. Hughes, you don’t like that,’ and I says, no, sir, and I don’t intend to like it,’ and he said, 'I will see,’ and that was all he said. ”

These are the only suggestions which the plaintiff can urge in his favor, but they are not sufficient to change the fact that he was informed that the defendant was not willing to pay the $200 a year, that he made no dissent and apparently acquiesced, as he says, in order to have no misunderstanding and not to losé his job. Of course he' did not like .it, but he was called upon to dissent or assent and his subsequent conduct shows clearly that he assented. While he did not in words, say that he would submit to the reduction, he knew it was required and he assented to it by continuing in the employ and accepting payment on another basis.' There were at least two subsequent modifications of the contract with his assent. The company kept a memorandum of, the Conversation with reference to the $200; he is relying upon mere memory. At the time the $200 was deducted there was a financial depression and business was bad. At the time thp $50 was deducted he was getting to be a very old man for active employment and undoubtedly the deduction was not unreasonable. He did not intimate at the time that it was unjust. There is no possible warrant for deducting the $50 paid during the several years from the $200. If the plaintiff’s version is right he was entitled to it in addition to the $200. The effect of his evidence fairly means that instead of reducing his pay $200 it was increased (1) by making no allowance for lost time; (2) by paying him $50 additional each year. There is no j>retense that either party contemplated that the result of the defendant’s seeking to reduce the plaintiff’s pay $200 was that it was understood that it was to be increased. There was no suggestion by anybody that he credited the $50 as a payment on the $200. At the time of bringing suit he evidently resorted to that as a makeshift for appearance sake.

I think, therefore, upoii the law and the facts' the $200 was deducted pursuant to the agreement of the parties and that there can be no recovery therefor.'

But if I am. not right the fact remains that the defendant during all the time stood in the attitude of being unwilling to pay the $200. The $50 per year was not intended as a part payment of the $200. It was as a present and to make up for lost time charged. When it is claimed that the $50 is a part payment of the $200 and takes the remainder from the Statute of Limitations,, it is immaterial, what the plaintiff’s intent was in receiving it; the real question is what was the defendant’s intent in paying it. Was it paid as a part of the $200 under circumstances indicating that there was a balance unpaid 1 The. true rule is stated in Crow v. Gleason (141 N. Y. 489, 493): “In order to make a money payment a part payment within the statute, the burden is upon the creditor to show that it was a payment of a portion of the admitted debt, and that it was paid to and accepted by him as such, accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which a promise may be inferred to pay the remainder. Part payment of a debt is not of itself conclusive' to take the case out of the statute. In order to have that effect it must not only appear that the payment was made on account of a debt, but also on account of ■ the debt for which action is brought, and that the payment was made as a part of a larger indebtedness, and under such circumstances as warrant a jury in finding’ an implied promise to pay the balance. * "* * The payment must be made under such circumstances as to show a recognition of a larger' debt remaining unpaid.”

It is a violence to all the facts in this case to say that the defendant in making the weekly payments, or the yearly payment of the $50, was thereby admitting any indebtedness on account of the $200. Therefore, under any possible construction of the case, it is impossible to allow anything except for moneys growing due within six years prior to the action brought. I favor a reversal of the judgment on the law and the facts.

All concurred, Houghton, J., concurring on the question of the Statute of Limitations, except Betts, J., dissenting.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  