
    Annie E. Smith, App’lt, v. Fletcher W. Camp, Adm’r, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    Limitation—Acknowledgment.
    A statement of indebtedness contained in an informal attempt to make a will, and not intended to be communicated to the creditor during the life of the debtor, is not a sufficient acknowledgment to take the claim out of the statute of limitations.
    Appeal by plaintiff from a judgment recovered by her against the defendant, and also from an order denying motion for new trial.
    
      E. H. Pomeroy, for app’lt; W. Mitchell, for resp’t.
   Van Brunt, P. J.

This action was brought to recover the sum of $4,000, with interest, being an amount alleged to have been loaned by the plaintiff to one Mary Etta Camp at various times prior to December 28, 1882. The complaint also alleged that on said December 28, 1882, the said Mary Etta Camp acknowledged in writing that she owed the plaintiff the said $4,000 so loaned, and promised to pay the same, and signed said acknowledgment and promise.

Upon the trial it appeared that said Mary Etta Camp died November, 1884, leaving a last will and testament, dated July 19, 1883, after the memorandum hereinafter mentioned. By said will James W. Camp was appointed executor, to whom letters testamentary were duly issued upon the probate of the will. The executor having died, the defendant was duly appointed administrator with the will annexed. This action was originally commenced against the executor, and after his death revived as against the administrator.

The answer denied the loan, acknowledgment and promise to pay, and set up as a separate defense the statute of limitations, and the satisfaction of any claim by reason of said alleged loan by a legacy of $5,000 bequeathed to said plaintiff by said Mary Etta Camp in her last will and testament.

The plaintiff offered in evidence a certain memorandum book of the said Mary Etta Camp in the possession of the defendant, in which appeared the following in lead pencil, in the hand-writing of said Mary Etta Camp :

“57 St. Mark’s Place, 1 N. Y., December 28, 1882. [
“ I, Mary Etta Camp, of the city of New York, now to reside, being of sound mind but of uncertain health, do make this, my last will and testament, in case I am not able to make out more fully a statement more minute in its details, to my sister, Annie E. Smith, must be paid out of my estate $4,000 which I owe her, and my debts which I may leave unpaid to,
“ Mary Etta Camp,
“ Mary Etta Camp,
“ Mary Etta Camp.”

This memorandum remained in the possession of Mary Etta Camp in her lifetime, and on her death was found amongst her papers by her executor, and produced upon the trial by the defendant upon notice by the plaintiff. It does not seem to have been seen by anybody during the lifetime of the decedent.

There were certain other entries in the book put in evidence by the plaintiff made since the 1st April, 1881, amounting to $175, which appeared to be the acknowledgment of receipts of moneys from the plaintiff by the decedent- The plaintiff offered to prove items in these books prior to April 1, 1881, aggregating a large sum of money, and similar to thosé mentioned, running back to 1872.

This action having been commenced on the 9th October, 1888, ■ these items were considered to be barred by the statute of limitations, unless they were revived by the acknowledgment of December 28, 1882, and they were, therefore, excluded.

The court thereupon directed a verdict for the sum of $175 and the interest; and a motion having been made for a new trial, which was denied, from the judgment and order thereupon entered this appeal is taken.

The single question is whether the memorandum dated December 28, 1882, was such an acknowledgment as took the claim out of the statute.

It is well settled that an acknowledgment to prevent the statute of limitations from running must be intended to be communicated to the creditor or to influence his conduct; the theory being that because of the promise and acknowledgment he has probably refrained from taking those steps which he otherwise would have taken to prevent the statute from running.

In the case at bar it does not appear that the memorandum in question was ever intended to be communicated to the creditor during the lifetime of the debtor, or in anywise to influence her conduct. In fact the memorandum appears to be an informal attempt of Mary Etta Camp to make a will, and as it was futile for such purpose its objects cannot be perverted from that which was intended by the subscriber into an acknowledgment of an indebtedness which would be binding upon her. Even if it had been a will formally executed, it was revoked by the will of July 19, 1883, and an acknowledgment signed by a party recalled before the creditor has knowledge of it cannot possibly form the basis of a claim that the statute of limitations has ceased to run.

The whole tendency of the decisions upon this subject is that the acknowledgment must be communicated to the creditor for the purpose of influencing his action or that it might influence his action.

It is not necessary to cite authorities on this subject. In the Matter of Kendrick, 107 N. Y., 104; 11 N. Y. State Rep., 346, an acknowledgment under oath of an indebtedness was held to be insufficient to take the debt out of the statute, because it was not made to the creditor nor to his agent, nor to any one acting in his behalf; nor was it intended to be communicated to him or to influence his conduct. And it was held that an admission under such circumstances to a stranger was not effectual to rebut the presumption of payment or to revive a debt barred by the statute. Numerous other cases might be cited sustaining the principles already enunciated.

We think, therefore, that the judgment and order appealed from should be affirmed, with costs.

Daniels, J., concurs.

Brady, J.—I concur, but with some reluctance.  