
    Esselstyn against Weeks.
    A debt which was barred by the statute of limitations when the Code took effect is not revived by a verbal promise to pay it, made after that time.
    It seems that in an action under the Code, the complaint may be upon the original demand; and if the statute of limitations is interposed as a defence, the new promise or acknowledgment may be given in evidence to avoid it without being alleged in the pleadings.
    Appeal from a judgment of the court of common pleas for the city and county of New-York. The action was commenced on the 30th of April, 1851. The complaint alleged that the defendant executed to the plaintiff a note which was set out in terms. It bore date June 29, 1841; and thereby the defendant promised on demand to pay the plaintiff or bearer one hundred and twenty-five dollars and sixty-three cents with interest. The complaint further averred that the defendant, although requested to do so, had not paid the note, and demanded judgment for its amount. The defendant, by his answer, alleged “ that the cause of action upon the promissory note in the complaint mentioned did not, nor did any part thereof, accrue to the plaintiff within six years next before the commencement of the action he further alleged payment of the note, and denied that he was indebted to the plaintiff in the amount thereof. The plaintiff replied, denying the alleged payment, and alleging that “ the cause of action upon the note did accrue to the plaintiff within six years before the commencement of the action.”
    The cause was tried before Judge Ingraham without a jury in April, 1852. The plaintiff read the note in evidence and offered to prove that in September, 1848, the defendant promised the plaintiff to pay the same. The counsel for the defendant objected to this evidence, on the ground that it was not within the issue made by the pleading in the cause. The objection was overruled and the evidence permitted' to be given, and the counsel for the defendant excepted. The plaintiff then proved that in September, 1848, his son, on his behalf, called upon the defendant at Hudson with the note and requested payment, and that the defendant then promised to pay the note in three weeks from that time. This promise was not in writing. This was all the evidence; and thereupon the counsel for the defendant requested the court to dismiss the complaint on the grounds: 1. That the plaintiff had failed to prove the issue made in the cause; and 2. That an oral promise was hot sufficient to take the case out of the effect of the statute of limitations. The court overruled the objections and gave judgment in favor of the plaintiff for the amount of the note, and the counsel for the defendant excepted. The judgment was affirmed by the court of common pleas at a general term. The defendant appealed to this court.
    
      Ralph Lockwood, for the appellant.
    
      George W. Stevens, for the respondent.
   Gardiner, Ch. J.

Two questions are presented in this case: 1. Whether the pleadings will admit the evidence offered, if competent to charge the defendant; and 2. Whether the Code of 1848, which requires a written promise, applies to the case.

As to the first question, the pleadings, according to the former practice, would authorize the admission of the proposed evidence. (14 Johns. R., 178; 9 Wend., 306.) The rule was established in conformity with the earlier English decisions, which made the statute of limitations presumptive evidence of payment only, to be rebutted by any evidence tending to disprove that fact,, whether accompanied by a promise or refusal to pay. In their view of the law, the facts necessary to avoid the bar of the .statute were mere evidence for that purpose, and the recovery must be had upon the original promise as the only cause of action. Modern decisions, particularly in this country, regard the statute as interposing an absolute bar i ? the original demand, and not merely as creating a presumption of payment. And it would undoubtedly be more in conformity with the spirit of these adjudications to hold, that the action must be founded upon the new promise; the original debt or assumpsit furnishing, the consideration necessary to uphold it. But as the rule to which I have referred has long been acted upon, and as substantial justice will be attained under either mode of pleading; I am inclined to acquiesce in the judgment of the common pleas upon this point, and to consider the pleadings sufficient notwithstanding the Code.

Second. Is a written promise necessary to be proved to sustain the action? The Code of 1848, which prescribed this, declares “that the title shall not extend to actions already commenced, or to cases where the- right of action has already accrued; but the statutes now in force shall be applicable to such cases, according to the subject of the action, and without regard to the form.” (Code of 1848, § 66; id., 1851, § 73.) When the Code took effect, in 1848, the plaintiff had neither commenced a suit nor had a right of action then accrued, if by that is to be understood a right to recover anything upon the promise stated in the complaint; a right of action barred by lapse of time and the provision of the statute declaring that no suit should be commenced thereon, is very different from a right “ already accrued,” which imports a perfected right, recognized by, and which can be enforced at law.

It is contended that the phrase quoted refers to and in eludes a right of action accruing- on the maturity of the note, and is not limited to a cause of action existing, when the statute took effect. The language is susceptible of this construction- undoubtedly; but in my opinion, the exception in this section includes “ actions commenced,” and actions which the plaintiff had a subsisting right to commence at the time when the enactment became a law. This includes every case in which the right of action was vested in or had accrued to the plaintiff when this part of the Code became operative) and no others. No others ought to have been included. The limitations established by the former act and by the Code were precisely "alike; The law was changed only in relation to the evidence by which the limitation could be avoided; or a: new cause of action created, by the subsequent acts of the parties, after the right which had originally accrued had been extinguished. If the evidence existed when the Code took eflect, it was equivalent to a new contract, and could not be altered by the legislature. They might as well have declared that an existing promissory note should be no evidence against the maker. Hence, all those cases in which the right of action had vested in the plaintiff' were excepted. But it was entirely competent for the legislature to provide that contracts made after the passage of the law should all be evidenced in the same manner; and was, indeed, necessary to the symmetry of' the system they were about to establish. Whatever reasons existed for providing that the promise should be in writing, whether to guard against fraud, false swearing or misapprehension, all would apply to evidence thereafter to be furnished by the plaintiff, whether that related to a demand then barred by the old statute, or which might subsequently be extinguished by operation of the new one. A provision for two distinct kinds of evidence for the same class of cases would lead to confusion and reflect no credit upon the wisdom of our legislature. A subsequent section of this same title accordingly provides, in the broadest language, “that no acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this title, unless the same be contained in some writing, signed by the party to be charged thereby.” (Code of 1848, § 90; id., 1851, § 110.) The provision is wholly prospective. It reaches every case of an acknowledgment or promise thereafter to be made; while the 73d section declares in substance, that such acknowledgment or promise, if theretofore made, or the right of action accruing therefrom, shall remain as formerly, unaffected by the new rule of evidence established for future case's by that title. This was the conclusion reached by the supreme court in Wadsworth v. Thomas (7 Barb., 445).

The judgment of the common pleas should be reversed on this ground.

Denio, Johnson, Marvin and Crippen, Js., concurred in the foregoing opinion.

Dean, J. (Dissenting.)

I do not think there is any force in the objection taken to the admissibility of the testimony in reference to the new promise. The cause of action is the indebtedness, of which the note was the evidence merely. The new promise, if effectual, was only to keep alive or continue the original cause of action. I cannot, therefore, think it was necessary for the party to declare on the new promise. On the contrary, I must regard the old system of pleading as correct.

The other question, viz., whether it was necessary for the promise to be in writing, is one of more difficulty. The note was dated in June* 1841, payable on demand, and therefore as regards the statute of limitation, payable immediately. The new promise, relied upon by the plaintiff, was in September, 1848, after the statute had barred the claim. By the law, as it had existed prior to the passage of the Code, an acknowledgment of the debt, or a promise to pay, would keep the original debt in existence. By § 90 of the Code, then in force, “ no acknowledgment or promise ” was “ sufficient evidence of a new or continuing contract, whereby to take the case out of the operation” of the statute, unless in writing signed by the party to be charged thereby. But § 66 of the same title provides that that title “shall not extend to actions already commenced or to cases where the right of action has already accrued.” The right of action had accrued prior to the adoption of the Code, and therefore it did not apply to this case. For these reasons I think the judgment should be affirmed. Hand, J., was also in favor of affirmance.

Judgment reversed.  