
    ARTHUR D. FISKE, Plaintiff, v. WILLIAM F. HIBBARD, Defendant.
    Before Speir and Freedman, JJ.
    
      Decided June 13, 1879.
    Statute op limitations.
    This statute, when applicable, is something more than presumptive evidence of payment. It is a complete bar to the recovery of the debt, and no admission of the debtor will avoid the discharge unless under circumstances that indicate an acknowledgment of the debt, and a willingness to pay the same.
    An express promise to pay, however, is not necessary, when the same can be implied from the acknowledgment of a present indebtedness (Kincard v. Archibald, 10 Hun, 9; and affirmed in the court of appeals, April 2, 1878, and other cases cited in the opinion of the court).
    In this case, the defendant wrote a letter to the plaintiff, which contained the following statements in regard to the debt in ques tion:
    “I am well aware that I owe you for money borrowed.”
    “ As you have the figures, I wish you would at your leisure make out a statement of what, you consider my indebtedness to you, and send it to me, resting assured that in all money matters I want to act honestly toward everybody.”
    
      Held, by the court, that these statements of defendant to plaintifE in that letter were a sufficient acknowledgment of a present indebtedness, and from which a promise to pay might be implied.
    This action was brought to recover the amount of certain loans made by Frederick S. Heiser to the defendant in 1868, and also to recover the amount of advanees made by said Heiser, in order to protect his interest in a certain lease assigned by the said defendant to said Heiser, as security for the greater part of said loan.
    The defendant, by his answer, admits an indebtedness of a limited amount. As to the residue of the claim, he interposes the statute of limitations as a defense ; but in case the statute shall not be held to bar a recovery, he claims that his indebtedness to Heiser was extinguished by the absolute conveyance of his interest in a certain lease of premises in the city of Hew York; and that such conveyance was not made by the defendant as security for a loan of $5,000, as is insisted by the plaintiff.
    Upon the trial, a verdict was rendered for the plaintiff, by direction of the court, for $15,765.19, and defendant’s exceptions were ordered to be heard at the general term in the first instance.
    
      W. T. Schley, for the plaintiff.
    
      M. S. Thompson, for the defendant.
   By the Court.—Freedman, J.

Whether the real arrangement between the parties amounted to an absolute or a conditional sale, or was intended to be collateral security for loans already made, and a further loan to be made on the faith of it, depends upon the facts and circumstances surrounding the transaction. It was competent to show that the writings, though appearing, to a certain extent, absolute upon their face, were intended to stand as security merely. . This proof the plaintiff furnished, and the defendant "gave no testimony to the contrary. The court below was, therefore, right in determining this branch of the case in favor of the plaintiff.

I am also of the opinion that the defendant was credited with all moneys as to which he was entitled to credit.

The only remaining question arises upon defendant’s exception to the ruling of the court that the plaintiff’s claim was not barred by the statute of limitations. This ruling was based upon a certain letter, written by defendant to plaintiff, which was held sufficient to take the case out of the operation of the statute. It contains, among other things not necessary to be considered, the following statements, viz.:

1. “I am well aware that I owe you for money borrowed;” and

2. “As you have the figures, I wish you would, at your leisure, make out a statement of what you consider my indebtedness to you, and send it to me, resting assured that in all money matters I want to act honestly toward everybody.”

The only objection urged against it relates to the sufficiency of the acknowledgment contained therein.

The statute of limitations, when applicable, is something more than presumptive evidence of payment of the debt. It is a complete bar. Ho admission of the debtor will avoid the discharge, unless made under circumstances which indicate a willingness to pay. But no express promise is necessary, as long as a promise may be implied from the acknowledgment of a present indebtedness (Kincaid v. Archibald, 10 Hun, 9; affirmed by the Court of Appeals, April 2, 1878; McNamee v. Tenny, 41 Barb. 495; Ross v. Ross, 6 Hun, 80; Loomis v. Decker, 1 Daly, 186; Winchell v. Hicks, 18 N. Y. 558; Chace v. Higgins, 1 N. Y. Supm. Ct. [1 T. & C.] 229; Code of Civ. Pro. § 395).

Considered in the light of these authorities, the letter in question contains a sufficient acknowledgment of an indebtedness then existing, to take the case out of the operation of the statute.

Defendant’s exceptions should be overruled, and judgment absolute rendered in favor .of the plaintiff, upon the verdict, with costs.

Speir, J., concurred.  