
    Thomas Willis, Plaintiff, v. Arthur Wileman et al., Defendants.
    (Supreme Court, Nassau Trial Term,
    March, 1907.)
    Limitation of actions — Revival of obligation — Acknowledgment and new promise — Nature of promise or acknowledgment.
    An acknowledgment of a debt contained in a letter is sufficient to take the case out of the Statute of Limitations if the writer only recognizes the debt and admits that he is the debtor and although the letter is written after the commencement of the action.
    The complaint set forth a canse of action for goods sold and delivered.
    The defendant Arthur Wileman interposed an answer oontaining a general denial and setting up as a defense the Statute of Limitations.
    The action was tried before the court without a jury.
    Joseph Martin, for plaintiff.
    McGuire, Delany, Hiper & Connolly (Arthur Wileman, of counsel), for defendant.
   Scudder, J.

Upon the trial of this action the defendant Arthur Wileman relied solely upon the defense setting up the Statute of Limitations.

The statements contained in the letters of this defendant to plaintiff constitute a sufficient acknowledgment to take the case out of the Statute of Limitations. The amount or character of the debt need not be expressed, nor is an expressed promise to pay necessary. A recognition of the debt and an admission that the writer is the debtor of the person addressed are all that are necessary. Shaw v. Lambert, 14 App. Div. 265; Fletcher v. Daniels, 52 id. 67; Cudd v. Jones, 63 Hun, 142.

In the letter of February 14, 1906, to plaintiff, defendant states “ I am writing this to see if we can come to some understanding or arrangement in this affair. I am anxious and willing to pay you when it lies in my power. I have had some great battles to fight since I have been here and after all.I have nothing that I can call my own. You have been a good friend to me and I am willing to show my appreciation. As far as I am concerned,* this debt is outlawed according to law as it is over eight years since I paid you a cent, but I always say an honest debt is never out of date. * * *. I shall not fight this case for I have nothing now to fight with. It will go by default. If you take judgment it will be back of all the rest and it will be worthless.”

This is a sufficient acknowledgment of the debt within the authorities above cited.

It is claimed by defendant that the letters were written after commencement of the action and that they, therefore, cannot be considered.

Plaintiff was not required to plead in his complaint facts to take the case out of the Statute of Limitations, either as a part of his cause of action or in anticipation of the setting up of that statute as a defense. Such defense must be set up by answer and cannot be raised by demurrer. See Code Civ. Pro., § 413; Sands v. St. John, 36 Barb. 628.

The acknowledgment in writing to take the case out of the statute is only a matter of evidence. See Code Civ. Pro., § 395. The fact that plaintiff acquired the instrument of evidence necessary to rebut the defense setting up the statute subsequently to the commencement of the action does not render the instrument incompetent as evidence or militate against its effect as an acknowledgment by defendant of the debt sued on.

Judgment for plaintiff.  