
    Denis V. Murphy, Respondent, v. Michael Walsh, Appellant.
    Second Department,
    June 8, 1906.
    Statute of Limitations — part payments — burden on plaintiff t'o show that payment was made on specific debt outlawed — failure to' sustain such burden of proof., s
    The burden is upon a creditor relying upon a part payment to take a debt out of the Statute.of Limitations to show that the.payment was made upon the particular debt and was so accepted under circumstances indicating an absolute acknowledgment by the debtor that the money was due.
    When a plaintiff sues for balances due-on two separate building contracts and the payments relied on to take the debt out of the Statute of Limitations exactly make up the contract price duevon one of the contracts, the plaintiff ' has not met the burden of 'showing that the payments were made on the general balance due under both contracts.'
    
      Appeal by the defendant, Michael Walsh, from a judgment of the County Court of Westchester county, entered in the office of the cleric of the county of Westchester on the 20th day of January, 1905, upon, the verdict of a .jury; also from an order entered in" said clerk’s office on the 17th day of January, 1905, granting the plaintiff an extra allowance, and also from an order entered in said clerk’s office on the 4th day of March, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      William A. Walsh, for the appellant.
    
      Adrian M. Potter, for the respondent.
   Jenks, J.:

The plaintiff complains in his first cause of action that between March, 1883, and November 1, 1895, his assignor labored for the defendant and furnished materials to him in consideration of $2,795.87, on which there was a balance due on November 21,1895, of $873.47, and in a second cause of action that plaintiff’s firm labored and-furnished' materials in building the defendant’s house, No. 115 Palisade avenue, for $2,026. He alleges that “ in consequence of the aforesaid two causes of action ” defendant has paid $1,958.25, and asks for judgment for the balance due oí $941.22. The jury gave a verdict for that amount to him, and the defendant appeals.

Aside from denials the defendant pleads payment and the Statute of Limitations. The action was begun on January 13, 1904. To avoid the statute the plaintiff relies upon part payments within the statutory period. These payments consist of checks given to John A. Murphy, the then partner of the plaintiff, now dead, or to his order, one for $25 on July 5, 1898, and one for $11.75 on August 11,1898. There is no dispute about the payments, but the controversy is over the application thereof. It appears that the plaintiff’s’assignor did considerable work for the defendant. He assigned “all the rights and interest” in the account of Michael Walsh (the defendant) to his sons on November 21, 1895. In the fall of 1895 the houfee, No. 115 Palisade avenue, was begun. It was finished in 1896. The plaintiff’s assignor asserts that he began the work thereon and then turned it over to his sons, of whom one is this plaintiff, and that they finished it, so that, as the son asserts, the contract price and extras, became due to his firm. On the other hand, the defendant testifies that the said assignor Solicited .the con tract for his sons, and that it was made with them. .Which is the.

. correct version is not material, inasmuch as it is not disputed that the contract was carried .out and completed by thé :sons, and the payments thereunder were their due. On March 21, 1897, there was rendered an account to the defendant as indebted to Denis " i Murphy (the assignor), wlierein were- specified various work done ■and materials furnished,. Beginning March 13,1883. The'debits amounted to $4,821.87, and the credits to $3,780.65, Among the ' debits appear: “To contract for building.house 115 Palisade Avenue, 1,970.00. T.o extra for front brick house 115. Palisade Ave., 56.00.” And among the credits is: “ Received on account of house 115 Palisade Ave. by checks, 1,750.00.” The' total balance due stated is $1,041.22. The plaintiff insists that the two payments by checks of July 5, 1898, and of August 11, 1898, are part payments applicable on the entire account, while the defendant contends that they were specific payments.on account of the "contract with the plaintiff’s firm for Mo. 115-Palisade avenue. The mere payments “ without anything to Show on what account or for what reason the money was paid ” cannot avail the plaintiff against the bar of the statute. The burden is Upon the creditor to show that the payment was on the particular debt, so accepted, and under circumstances indicating an absolute acknowledgment by the debtor of more money due. (Crow V. Gleason, 141 M. T. 489.) Putting aside the oral testimony as to the devotion of the payments for the moment these facts appear: The main work on, Mo. 115 Palisade avenue-" was .done by the plaintiff’s firm,-and the money payable Under the contract xvas due to them. The Work was. begun in the fall of. 1895 and finished some time.in 1896. It is admitted that between April 16, 1896, and August 8, 1898,- the - defendant gave checks tó the order of John A, Murphy,-one of the firm, to the amount of .$1,861.75. It is admitted that the firm allowed the defendant for a cornice $108.25. - The sum of these items is $1,970, the- exact contract' price for Mo.' 1Í5' Palisade . avenue. Mow,' this said sum'of $1,861.75 was paid in various checks, almost "all of them in considerable sums and in round numbers. Up to July 5, 1898, the sum of these cheeks is $1,825. The addition of the check of July fifth, $25, makes $1,850, and the exact amount required to increase that $1,850 to such sum, ($1,861.75) as together with the allowance for the cornice ($108.25) exactly equalled the contract price for 115 Palisade avenue ($1,970) is $11.75. This is the precise amount of the check paid on August 11, 1898. Thus the addition of botli sums on which the contention of • part payment is based is necessary to make up the exact sum of the contract price for this particular work on the house Wo. 115 Palisade avenue.

Again, the said sum of $1,861.75 was paid between April 16, 1896, and August 8, 1898. At that time the firm held the assignment, dated Wovember-21, 1895, of their father’s claim. When, the plaintiff sued there were but two claims upon which these payments could be applied, either those covered by the first cause of action or that covered by the second cause of action. In, his first cause of action he pleads that there was received and allowed in credits thereon $1,922.40, leaving a balance due and owing on Wovember 21, 1895, of $873.-47. Turning to the credits in the bill rendered, I find that the first four items — “ Eeceived on account of job 19 Main St. * * * $550.00. Eeceived oil account'of O’Weil’s job, 175.00. Eeceived on account job 117 Palisade Ave., * * * 1,150.00. Amount of cornice tobe deducted 117 Palisade Ave. * * * 47.40'— amount exactly to the credits pleaded in the first cause of action, namely, $1,922.40. The present contention is opposed to the theory of the complaint.

The assignor testifies that the twenty-five dollars was paid on the whole account that was standing. He testifies that he knows this because the bill was sent to Mr. Walsh. But the bill referred to embraces the house Wo. 115 Palisade avenue, and the charges and credits therefor. So this is no reason at* all. I find no other evidence that throws light upon the application of these payments.

The alleged item of fifty-six dollars fdr extra work has no bearing on the question under discussion, inasmuch as it was not admitted. There was a dispute over it, the defendant contending that the more, costly brick was covered by the original contract price. The defendant testifies that these two -payments of twenty-five dollars and eleven dollars and seventy-five cents respectively were in dis"charge of the contract for 115 Palisade avenue.' I think that the plaintiff did not support the burden imposed upon him under the \ • rule of Crow v. Gleason (supra), and that, therefore,' there should" be' a new trial ordered, costs to abide the> event.' '

Hooker, Gaynor, Rich and Miller, JJ., concurred.

Judgment and orders of, the County Court of Westchester county reversed and new trial ^ordered, costs to abide the event.  