
    
      In re Hearman’s Estate.
    
      (Surrogate’s Court, Rensselaer County.
    
    January 15, 1892.)
    Limitation of Actions—Payment of Interest—Evidence.
    Since the provision of Code Civil Proe. § 395, that an acknowledgment in writing by the party to be charged is necessary to take a case out of the operation of the limitation, “does not alter the effect of the payment of principal or interest, ” an action on a note payable by one decedent to another is not barred when it bears an indorsement of the payee acknowledging the payment of interest within the statutory period, and a witness testifies that, while working for the payee, about the time that the installment of interest became due, the maker called at the payee’s house; and stated that he wanted to pay “that little interest, ” that the payee said “that’s right, ” and that they then Withdrew as if to pay and receive the same.
    Proceeding to sell, mortgage, or lease the real estate of Peter Hearman, deceased, for the payment of his debts.
    For decision on appeal from a decree establishing the claim of Jacob H. Snyder, see II H. Y. Supp. 905.
    
      George H. Hearman (R. H. McClellan, of counsel,) for Charles S. Hear-man and others. A. B. Slocum, special guardian for Hiram N. Brown, an infant. C. H. Denio and B. W. File, for Jacob H. Snyder.
   Lansing, S.

Jacob Harman Snyder, as administrator of Jacob A. Snyder, deceased, présents a claim, duly verified, upon two promissory notes, made by said Peter D. Hearman, deceased, and others, to secure the payment of the sums of $600 and $900, respectively, whereby they promised to pay, one year after date, with interest, said several sums to Jacob A. Snyder or order. Said notes are dated, respectively, the 2d and 3d of April, 1876, and each bear indorsements that interest has been paid each year in full from 1877 down until the 1st day of April, 1884. The last indorsement upon each is dated April 1, 1884, and acknowledges the receipt of interest in full of $54 and $36, respectively. It is admitted that Jacob A. Snyder died May 28, 1878, and that each of the two several indorsements made upon each of said notes prior to his death are in his handwriting. It was proven upon the trial that the remaining indorsements were in the handwriting of Jacob Harman Snyder, the- owner and holder of said notes after the death of his father, Jacob A. Snyder. Peter D. Hearman died August, 1887. Concededly no interest has. been-paid upon said notes since April 1, 1884; but, if made at that time, it would be within six years before the commencement of this proceeding.

The claimant, to establish his claim, called as a witness one William H. Wolf, who testified that he worked for Jacob Harman Snyder for eight months in the year 1884, commencing in the early spring, and that he never worked for him except in one year. That he knew Peter D. Hearman, deceased. That about the last of April or first of May, 1884, Peter D. Hearman came to the house of Jacob Harman Snyder, and he heard a conversation between said Hearman and Snyder, as follows: Mr. Hearman said, “Mr. Snyder, I came to pay that little interest.” Harmy (Jacob H.) said, “That’s right; that’s right.” Then they went into the other room. He further testified that he saw no money paid, or any indorsements made upon the notes. This witness was subjected to a severe cross-examination, and it is evident that his memory as to dates is very uncertain and unreliable; but it was established without question that the season that Wolf worked for Jacob H. Snyder was the spring and summer of 1884, and, as he worked there but one season, and as he states the conversation occurred in the spring while he was at work there, it seems reasonable to believe that the conversation which he alleges he heard occurred in the early spring of 1884. Let it be assumed, then, that the witness is correct as to the time of this conversation, and that the conversation itself occurred as stated by him. The question then arises, what is the effect of this indorsement purporting to have been made April 1, 1884, in the handwriting of Jacob H. Snyder, for the amount of interest then due upon each of these notes, taken in connection with the other evidence in the case? Two questions are presented for solution before reaching the ultimate question,—one of law, and one of fact.

1. As to the law. An action upon a contract must be commenced in six year's after the cause of action accrued. Code Civil Proc. § 380. In order to take a case out of the operation of the statute of limitation, an acknowledgment in writing, signed by the party to be charged, is necessary. Id. § 395. But this provision “does not alter the effect of the payment of principal or interest. ” Section 395. It follows, then, that the provision of the Code (section 395) changed neither the nature nor effect of payment of interest or principal, nor introduced any rule of evidence in regard to the establishment of the same, different from that existing before the adoption of the Code. Mills v. Davis, 113 N. Y. 246, 21 N. E. Rep. 68. To make an indorsement of principal or interest upon a note admissible in evidence at all, it must be proved to have been made before the presumption of payment attached by lapse of time; in other words, the indorsement, which is only evidence of the payment, must appear to have been made by a creditor at a time when he had no motive to give a false credit, and at least before the statute of limitations had created a bar. Roseboomv. Billington, 17 Johns. 181. ■ But where it satisfactorily appears that an indorsement was made at a time when it would be against the interest of the party making it, it will furnish evidence for the. consideration of the. trial court of payment according to its terms. Roseboom v. Billington, supra.

2. This leaves for consideration the question of fact, when were the in-, dorsements in question made? I think the evidence tends strongly to show not only that the indorsements were made on or about.the time they bear date, but also that the interest upon the notes were at that time paid, which latter fact is sufficient to prevent the bar of the statute, even if no indorsements had been made. The statute provides that payment of principal or interest alone will prevent the bar. It does not require an indorsement to evidence it. How, what are the facts? Peter D. Hearman comes to the house of Jacob Harman Snyder and states that he came to pay “that little interest.” Snyder says, “That’s right.” They go into another room, and subsequently the notes are produced bearing the indorsement of interest..pur-, porting to have .been made at or about that time. It was the duty of Hear-man to pay interest on said notes, for it was due at or about the 1st of April, 1884. It does not appear that there were any other notes or obligatians held by Snyder against Hearman; and when he came expressing an intention to pay interest, and Snyder expressed a willingness to receive it, and both went into another room together, it may be fairly presumed that they went there to transact there the business upon which Hearman came, and which they both had in mind, namely, the one to pay and the other to receive the interest, and to have such payment evidenced by an indorsement upon the notes, and that the same was at that time made and done. It is said that such payment may not have been made. True, but no fact was shown warranting that conclusion; on the contrary, every fact shown warrants the conclusion of payment. I am satisfied that the facts and circumstances above stated warrant the conclusion as matter of fact that the interest was in fact paid upon the notes at that time. And if the fact of such payment is presumptively established by the evidence without the indorsement, then the payment becomes conclusively established when it appears reasonably clear that at the same time the indorsements were also made upon the notes in the presence of the maker. Upon the whole, I am satisfied that the evidence is sufficient to warrant the conclusion not only that the indorsements were made at or about the time they bear date, but that the interest upon the notes was at that time paid. This case is readily distinguishable from the case of Mills v. Davis, supra. In that case the court say each indorsement might have been made after the time when the statute had taken effect, and the court add: “There is no extrinsic proof of the time when the indorsement was made, nor evidence of explanatory circumstances.” It was for the lack of such extrinsic proof and evidence of explanatory circumstances (which was furnished in this case) that the plaintiff’s case was held insufficient in the case cited. In conclusion I shall hold in this matter, for the reasons stated, that the plaintiff’s claim is established for the sum of $1,500, and interest thereon from the 1st of April, 1884.  