
    Oughterson v. Clark.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 21, 1892.)
    Limitation op Actions—Partial Payment—Evidence—Indorsement on Note.
    Though, for the purpose of taking an action on a note out of the bar of the statute of limitations, a mere indorsement on the note is not evidence of payment, stilL plain tifE having testified that before the action she presented the note so indorsed. to defendant, and he said the indorsement was all right, and this having been.Qprroborated by another witness, and defendant, though present, not having testified; the jury were warranted in finding for plaintiff on the issue.
    Appeal from circuit court, Ontario county.
    Action by Carrie Oughterson against David Clark on a note. From a judgment for plaintiff, defendant appeals. Affirmed.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      John Gillette, for appellant. George L. Bachman, for respondent.
   Macomber, J.

This action was brought upon a promissory note given by the defendant to one Lucy J. Clark, and by the latter transferred to the plaintiff, in the sum of $278, and alleged to have been made in the year 1878. The defenses set up in the answer are: (1) That the note was made in 1875, instead of 1878; (2) that the date was changed after the note was executed and delivered to Lucy J. Clark; (3) the statute of limitations. Upon all of these questions the jury found a verdict in favor of the plaintiff. No motion for a* new trial having been made, either upon the minutes of the court or at special term, no review of the facts arising from such trial can enter into our consideration of the case. Unless, therefore, some legal error was committed upon the trial, prejudicial to the defendant, the judgment appealed from must be affirmed.

The only question on this appeal admitting of debate arises out of the plea of the statute of limitations. When this action was begun, the statute had apparently run against this note. With this issue presented by the answer, (there being no written promise or acknowledgment .by the defendant in writing reviving the note,) the burden of proof rested upon the plaintiff to show that, notwithstanding the lapse of more than six years from its maturity, the note had been kept alive by the payment of some part of the principal or interest. When produced in court it bore the following indorsement: “Received on the within, interest, $5.00, January 1, 1885.” This was in the handwriting of the then holder of the note. If the payment purporting to have been made by this indorsement was actually made at the time indicated, the note was clearly saved from the operation of the statute; otherwise not. When the counsel for the plaintiff offered the note in evidence, together with the indorsement thereon, objection was made to the reception of the indorsement as not being any sufficient evidence of the actual payment of five dollars at the time indicated or at any other time. The objection was overruled, to which ruling of the court the defendant’s counsel duly excepted. It is now contended by the learned counsel for the appellant that the reception of the indorsement in evidence was such error as that the judgment appealed from should be reversed. It is argued that such indorsement was an act or declaration of the holder of the note, made in her own interest, for the purpose of defeating the operation of the statute of limitations. The general rule undoubtedly is that, where the statute of limitations is involved, a mere indorsement of the sum upon a note, even when shown to have been done by the holder thereof, is not evidence of payment of the sum so indorsed. We do not understand that this rule has been questioned since the decision in the ease of Roseboom v. Billington, 17 Johns. 181, where it was held that to make an indorsement admissible it must be proven to have been made before the presumption of payment attached. Spencer, C. J., there said, summing up his discussion of the question: “An indorsement, therefore, on a bond or note, made by .the obligee or promisee, without the privity of the debtor, cannot be admitted as evidence of payment in favor of the party making such indorsement, unless it be shown that it was made at the time when its operation would be against the interest of the party making it. If such proof be given, it would, I think, be good evidence for the consideration of the jury.”See, also, Mills v. Davis, 113 N. Y. 243, 21 N. E. Rep. 68; Hulbert v. Nich ol, 20 Hun, 454; Risley v. Wightman, 13 Hun, 163. But, under the evidence returned to us, this case does not come within the general rule above stated. The plaintiff was called as a witness in her own behalf, and testified, among other things, in substance, that shortly before the beginning of this-action she presented to the defendant this note for payment, and at that time it had the indorsement as it now appears. The defendant took the note into-his possession, examined it carefully, and then replied that he knew the indorsement was on it, and that it was all right, and that he would pay it. This testimony was in part corroborated by another witness. The defendant, though in court, and a perfectly competent witness, was not called, either to deny or explain away this positive evidence. This testimony was sufficient, in our judgment, to enable the jury intelligently to find as a fact that the payment of five dollars interest was actually made at the time alleged. The jury was, therefore, we think, fully justified in finding a verdict in favor of the plaintiff upon this issue, as well as upon the other issues in the case. It follows, therefore, that the judgment appealed from should be affirmed. All concur.  