
    The Brooklyn Bank, Plaintiff, v. Frank A. Barnaby, Defendant.
    (Supreme Court, Kings Trial Term,
    December, 1907.)
    Limitation of actions — Revival of obligation — Part payment — Intention to acknowledge; Persons who make payments.
    A payment upon a promissory note barred by the Statute of Limitations must be the deliberate, voluntary act of the debtor or his agent evidencing an intention on his part to acknowledge the. existence of the debt.
    " Where a promissory note authorized the payee, a bank, to sell the collateral and apply the net proceeds on the note, and the cashier of the bank sells the collateral, the credit by him of the proceeds indorsed upon the note, of which transaction the maker was notified and to which he made no objection, constituted a payment by the cashier as agent of the maker sufficient to bar the Statute of Limitations as a defense to an action on the note.
    
      Action on a promissory note made by the defendant on February 12, 1891-, to the order of plaintiff for $68,000, with interest, payable on demand. The action was commenced September 12, 1906. The defendant pleads the Statute of Limitations.
    Prior to August 24, 1899, the defendant made certain payments on account of' the note, which are not in dispute. On that day plaintiff alleges a payment of $562.50, and another payment on December 10, 1901, on account of principal, $1,437.50. Plaintiff also alleges a payment by defendant, on account of interest, on July 30, 1895, of $500, and another interest payment on December 10, 1901, of $337.50. Plaintiff alleges that there is a balance due of $13,565.
    The defendant denies the four payments specifically referred to.
    The note in question is in the following form:
    “ $68,000. Brooklyn, H. Y., February 12th, 1894.
    “ On demand, after date I promise to pay to the Brooklyn Bank of Brooklyn, or order, at the Banking House of said Bank, in funds current at the New York Clearing House ..........dollars with interest at the rate of ... . per cent. per annum, for value received, having deposited with said Bank as collateral security
    650 Brooklyn City P. R.
    Co.
    150 Lewis & Fowler Mfg.
    Co.
    30 Lewis & Fowler Girder Rail Co.
    2000 Knickerbocker Bonds.
    75 Knickerbocker Stock.
    20 Brooklyn R. E. Exeh.
    97 Lewis & Fowler Mfg.
    Co.
    297 Long Island Trac'ion 200 E. W. Bliss Co. Com. 170 H. Y. & E. R. Stock. 100 E. W. Bliss Pfd.
    20 Eighth Ward Bank.
    25 Eagle Warehouse.
    100 B. C. R. R. Stock. 1128 Lewis & Fowler Mfg. v Co. Stock.
    which hereby authorize said Bank, or its President or Cashier to sell without notice, at the Board of Brokers, or at public or private sale, at the option of said Bank, or its President or Cashier, in case of the non-performance of this promise, applying the net proceeds to the payment of this ISTote, including interest, and accounting to for the surplus, if any. In case of deficiency......promise to pay to said Bank the amount thereof forthwith after such sale, with legal interest; and it is hereby agreed and understood, that if recourse is had to the collaterals, any excess of collaterals upon this Rote shall be applicable to any other note or claim held by said Bank against................and in case of any exchange of, or addition to the collaterals above named, the provisions of this note shall extend to such new or additional collaterals. The Margin .of Collaterals on this ISTote to be kept at not less than 20 teb cent., or in default thereof the same to be payable on demand.
    F. A. Babnaby.”
    As to the payments in dispute, it appears that, on August 24-, 1899, the defendant wrote a letter to plaintiff requesting the delivery of seventy-five shares of the stock of the Knickerbocker Steamboat Company, deposited as collateral, and requested plaintiff to “ accept in place thereof five hundred sixty-two 50/100.” The letter was signed by the defendant, and the plaintiff’s cashier delivered the stock to the defendant and credited the money received on account of the loan 3'epresented by the note, indorsing the payment upon the note.
    On December 10, 1901, the plaintiff sold at private sale twenty-five shares of Eagle Warehouse stock, part of the collateral deposited, receiving therefor seventy-one dollars a share, .in all $1,437.50, and credited the proceeds on the loan represented by the note, indorsing thereon:
    “December 10th, 1901. Eec’d a/c within loan, fourteen hundred and thirty-seven 50/100 dollars from sale of 25 shares Eagle Warehouse Co. Thomas M. Halsey, cashier.”
    The next day the cashier wrote and mailed to defendant a letter informing him of the sale of the collateral and the application of the proceeds. The defendant.made no reply.
    
      The defendant offered no evidence, hut insists that the transaction of December 10, 1901, was not a payment sufficient to bar operation of the Statute of Limitations. A jury was' waived ■— both parties moving for the direction of a verdict.
    Dykman & Kuhn (John J. Kuhn, of counsel),• for ^plaintiff.
    Myers & Goldsmith (Emanuel J. Myers and Gordon S. P. Kleeberg, of counsel), for defendant.
   Kelly, J.

To bar the Statute of Limitations, there must be a deliberate, voluntary act of the debtor or his agent, evidencing an intention on his part to acknowledge the existence of the debt. Section 382, Code Oivil Procedure, provides that an action upon a contract, obligation or liability, express or implied, must be commenced within six years after the cause of action has accrued. Section 395 of the Code provides: “An acknowledgment or promise contained in a writing, signed by the party to be charged thereby, is the only competent evidence of a new or continuing contract, whereby to take a case out of the operation of this title. But this section does not alter the effect of a payment of principal or interest.” The defendant relies on a line of decisions to the effect that an involuntary payment, or a payment by operation of law, as through levy and sale under execution or by foreclosure and the like, is not sufficient to bar the statute. This may be so, but the payment in this case, on December 10, 1901, was not such-a payment. It was a payment made by defendant through his agent, the cashier, who was expressly authorized in writing signed by defendant to sell the collateral without notice, at public or private sale, at his option, applying the proceeds to the payment of the note. And he was notified of the transaction and in no way objected to the act of the cashier. Judge Rapallo says, in Harper v. Fairley, 53 N. Y. 442, cited by defendant, “ The reasoning of such cases as McLaren v. McMartin, 36 N. Y. 88 and Pickett v. Leonard, 34 N. Y. 175, determines that a part payment, whether made before or after the debt is barred by the statute, does not revive the contract, unless made by the debtor himself or by some one having authority to make a new promise on his behalf for the residue.” And to the same effect, Adams v. Olin, 140 N. Y. 150; Crow v. Gleason, 141 id. 489. In the case at bar, the payment was made by the cashier, acting as the agent of the defendant, under the express authority contained in the collateral note, a form of security used every day in the business world, and as to the legal effect of which there is, in my opinion, no question.

I, therefore, direct a verdict for the plaintiff for $13,565, the balance due upon the note, with interest to be computed.

Judgment for plaintiff.  