
    Smith v. Camp.
    
      (Supreme Court, General Term, First Department.
    
    December 29, 1890.)
    Limitation of Actions—Aoknowledoment.
    A testatrix, before making her will, wrote in a memorandum book what appeared to be an informal attempt to make a will, in which she directed payment to her sister out of her estate of a certain sum, “which I owe her; ” but this was not communicated to her sister until after the death of testatrix. Held, that it could not operate as an acknowledgment to prevent the debt becoming barred under the statute of limitations.
    Appeal from circuit court, New York county.
    Action by Annie E. Smith against Fletcher W. Camp, as administrator with the will annexed of Mary Etta Camp, deceased. Plaintiff appeals from a judgment for defendant entered on the verdict of a jury, and from an order denying a motion for a new trial. For other litigation concerning the estate of Mary Etta Camp, see 1 N. Y. Supp. 372, 375.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Eugene H. Pomeroy, for appellant. Mitchell & Mitchell, ( William Mitchell, of counsel,) for respondent.
   Van Brunt, P. J.

This action was brought to recover the sum of $4,000, with interest, being an amount alleged to have been loaned by the plaintiff to one Mary Etta Camp at various times prior to December 28,1882. The complaint also alleged that on said December 28, 1882, the said Mary Etta Camp acknowledged in writing that she owed the plaintiff the said $4,000 so loaned, and promised to pay the same, and signed said acknowledgment and promise. Upon the trial it appeared that said Mary Etta Camp died in November, 1884, leaving a last will and testament, dated July 19, 1883, after the memorandum hereinafter mentioned. By said will James W. Camp was appointed executor, to whom letters testamentary were duly issued upon the probate of the will. The executor having died, the defendant was duly appointed administrator with the will annexed. This action was originally commenced against the executor, and after his death revived as against the administrator. The answer denied the loan, acknowledgment, and promise to pay, and set up as a separate defense the statute of limitations, and the satisfaction of any claim by reason of said alleged loan by a legacy of $5,000 bequeathed to said ulaintiff by said Mary Etta Camp in her last will and testament. The plaintiff offered in evidence a certain memorandum book of the said Mary Etta Camp, in the possession of the defendant, in which.appeared the following in lead-pencil in the handwriting of said Mary Etta Camp:

“57 St. Mark’s Place, N. Y., December 28th, 1882.
“I Mary Etta Camp of the city of New York now to reside being of sound mind but of uncertain health do make this my last will and testament in case I am not able to make out more fully a statement more minute in its details, to my sister Annie E. Smith must be paid out of my estate $4000 which I owe her all my debts which I may leave unpaid to.
“ Mary Etta Camp.
“Mary Etta Camp.
“Mary Etta Camp.”

This memorandum remained in the possession of Mary Etta Camp in her life-time, and on her death -was found among her papers by her executor, and produced upon the trial by the defendant upon notice by the plaintiff. It does not seem to have been seen by anybody during the life-time of the decedent. There were certain other entries in the book put in evidence by the plaintiff, made since the 1st April, 1881, amounting to $175, which appeared to be the acknowledgment of receipts of moneys from the plaintiff by the decedent. The plaintiff offered to prove items in these books prior to April 1, 1881, aggregating a large sum of money, and similar to those mentioned, running back to 1872. This action having been commenced on the 9th October, 1888, these items were considered to be barred by the statute of limitations, unless they were revived by the acknowledgment of December 28,1882, and they were therefore excluded. The court thereupon directed a verdict for the sum of $175 and the interest; and a motion having been made for a new trial, which was denied,, from the judgment and order thereupon entered this appeal is taken.

The single question is whether the memorandum dated December 28,1882, was such an acknowledgment as took the claim out of the statute. It is well settled that an acknowledgment, to prevent the statute of limitations from running, must be intended to be communicated to the creditor, or to influence his conduct; the theory being that because of the promise and acknowledgment he has probably refrained from taking, those steps which he otherwise vtmuld have, taken to prevent the statute from running. In the case at bar it does not appear that the memorandum, in question was ever intended to be communicated to the creditor during the life-time of the debtor, or in any wise to influence her conduct. In fact, the memorandum appears to be an informal attempt of Mary Etta Camp to make a.will, and, as it was futile for such purpose, its objects cannot be perverted from that which was intended by the subscriber into an acknowledgment of an indebtedness which would be binding upon her. Even if it had been a will formerly executed, it was revoked by the will of July 19,1883; and an acknowledgment signed by a party,, recalled before the creditor has knowledge of it, cannot possibly form the basis of a claim that the statute of limitations has ceased to run. The whole tendency of the decisions upon this subject is that the acknowledgment must be communicated to the creditor for the purpose of influencing his action, or that it might influence his action. It is not necessary to cite authorities on this subject. In Re Kendrick, 107 N. Y. 104, an acknowledgment under oath of an indebtedness was held to be insufficient to take the debt out of the statute, because it was not made to the creditor, nor to his agent, nor to any one acting in his behalf; nor was it intended to be communicated to him, or to influence his conduct. And it was held that an admission, under such circumstances, to a stranger was not effectual to rebut the presumption of payment, or to revive a debt barred by the statute. Numerous other cases might be cited sustaining the principles already enunciated. We think, therefore, that the judgment and order appealed from should be affirmed, with costs.

Daniels, J. I concur.

Brady, J. I concur, but with some reluctance. 
      
       13 N. E. Rep. 763.
     