
    Cornelia Wheeler, Resp’t, v. Edward W. Simmons, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    Bankruptcy—Discharge—Subsequent payments.
    A promise by which a debt discharged in bankruptcy can be renewed must be an express and distinct promise, and cannot be implied from subsequent payments alone.
    
      (Laurence v. Harrington, 122 N, Y., 408; 33 N. Y. State Rep., 717, followed.)
    Appeal from judgment in favor of plaintiff, entered on a trial by the court without a jury.
    
      W. Farrington, for app'lt; Collins Sheldon (S. H. Brown and John Hacked, of counsel), for resp’t.
   Pratt, J.

—This action was commenced July 5, 1890, upon a promissory note for $2,000, dated September 22, 1874.

The answer set up the statute of limitations and a discharge in bankruptcy dated 12th day of February, 1879, which discharged the defendant from all debts existing on the 4th of September, 1877.

Several payments had been made upon the note from January 9, 1879, up to 1886.

These payments were relied on to take the case out of the statute of limitations and the court found as a fact that these having been made prior to the statute of this state passed June 8, 1882, constituted a new promise and, as matter of law, that the claim was not barred.

There is no evidence to sustain a new promise except the payments, and, therefore, the question is clearly raised whether a payment after a discharge in bankruptcy revives the debt

This question has been recently passed upon by the court of appeals in the case of Lawrence v. Harrington, 122 N. Y., 408; 33 N. Y. State Rep., 717, where it was held that a promise by which a debt discharged in bankruptcy can be renewed must be an express and distinct promise, and that such a promise cannot be implied from merely proof of partial payments.

The finding of fact in the present case has no evidence to support it, except the payments.

It follows that the judgment must be reversed and a new trial granted, costs to abide the event.

Dykman, J., concurs; Barnard, P. J., not sitting.  