
    Carrie Oughtersoh, Resp’t, v. David Clark, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    Limitation—Bndoksement on note.
    A note apparently barred by the statute of limitation bore an endorsement of payment made by the holder which would relieve it of such bar. The plaintiff testified that before the commencement of the action she presented the note to defendant, who replied that he knew the endorsement was on it and he would pay it. Defendant did not testify. Held, that the admission of the endorsement in evidence was not error, and that the jury were justified in finding in favor of the plaintiff.
    Appeal by the defendant from a judgment rendered in favor of the plaintiff for $600.91, on a verdict at the circuit, entered in Ontario county clerk’s office on the 13th day of November, 1891.
    
      George L. Bachman, for resp’t; John Gillette, for app’lt.
   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 endorsement:

“ Received on the, within interest, five dollars January 1,1885.”' This was in the handwriting of the then holder of the note. I£ the payment purporting to have been made by this endorsement, 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 endorsement thereon, objection was made to the reception of the endorsement 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 endorsement in evidence was such error as that the judgment appealed from should be reversed. It is argued that such endorsement 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 endorsement of a sum upon a note, even when shown to have been done by the holder thereof, is not evidence of payment of the sum so endorsed. We do not understand that this rule has been questioned since the decision in the case of Roseboom v. Billington, 17 Johns., 181, where it was held that to make an endorsement admissible, it must be proven to have been made before the presumption of payment attached. Spencer, Oh. J., there said, summing up his discussion of the question: " An endorsement, 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 endorsement, unless it be shown that it was made at a 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; 22 St. Rep., 580; Hulbert v. Nichol, 20 Hun, 454; Risley v. Wightman, 13 id., 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 endorsement as it now appears. The defendant, took the note into his possession, examined it carefully, and then replied that he knew the endorsement 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 he affirmed.

Judgment appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.  