the debtor requested the creditor to deliver certain collateral security held by the creditor, and to accept in place thereof $562.50, and the bank delivered the collateral and received the money and credited it on the note, that was a payment by the defendant upon his written request that the plaintiff accept a sum of money in lieu of part of the collateral then held by it, and supported the implication that the defendant intended to acknowledge the obligation of the debt and to make a new promise to pay the balance due; but it was also held that, where the bank upon its own initiative sold some of the collateral which it held, and realized therefrom the sum of $1,775, and applied the amount thus realized to the payment of the debt, that was not such a payment as suspended the statute of limitations. It was said that the effect of a part payment in enlarging the time during which an action may be brought is because a part payment, made on account of a claim, is an acknowledgment by the debtor of his liability for the whole demand, and from this acknowledgment a new promise on his part to pay the residue is implied. The undertaking of the debtor as to the unpaid part of the debt is thus, by a legal presumption, renewed and made to date from the time of the part payment.

"The debtor can always make a new promise, but where circumstances are relied upon to constitute such a promise, it may make a radical difference whether they occurred before or after the debt was barred. In the former case, with a debt still alive, it would require less evidence to create a promise to extent the running of the statute than in the latter case, with a debt barred, to revive the debt and renew the expired period.”

There was a strong dissent in that case, based upon the transfer of the collateral obligation, which, after enumerating the security pledged for the payment of the note, said:

“Which [I] hereby authorize said bank or its president or cashier, to sell in case of the nonperformance of this promise, applying the net proceeds to the payment of this note, including interest, and accounting to for the surplus, if any. In case of deficiency [I] promise to pay to said bank the amount thereof forthwith after such sale, with legal interest."

By the minority opinion it was held that the time that barred that obligation was six years from the ascertainment of the deficiency. The majority opinion, after considering some authorities relied upon by the plaintiff, said:

"Quite different is the case at bar, for here the defendant's promise was definite and unequivocal, covering the whole debt, dependent upon no condition or contingency which might relieve him from it, and embracing nothing that the law would not have implied if he had not reduced it to writing. If judicial construction can metamorphose such an indivisible transaction into two or more separate and distinct parts, governed by as many different periods of limitation, we may as well abolish the statute, for it will no longer be the shield of him who is sued, but the sword of him who sues."

So that, accepting this decision as controlling, the question is whether the defendant ever either made a payment, or authorized the acceptance of money by the plaintiff as a payment, upon his obligation from which a new promise to pay the balance due could be inferred. According to the testimony, this agreement of the 14th of November, 1905, and the note in suit were made to the bank on the same day, Jan

uary 3, 1906. By the note the defendant agreed to pay to the bank on demand the sum of $2,005.35. By the agreement that was delivered at the same time he assigned to the bank a claim against an insolvent bank or its receiver amounting to $3,006.35, expressly giving to the plaintiff power and authority for its own use and benefit, but at the defendant's cost, to ask, demand, collect, and receive some or any part thereof, and in the defendant's name or otherwise to prosecute and withdraw any suits or proceedings at law or in equity therefor. The defendant then agreed that this assignment was made as collateral security for an advance, or advances, made to the defendant by the plaintiff on account of said claim or demand, and that when the claim or demand shall be collected under the assignment, the bank would pay over to the defendant all sum or sums of money over and above the amount of any advance or advances, with interest thereon, made by the said Fourteenth Street Bank to the defendant on account of said claim or demand, and that if the amount paid by the Cooper Exchange Bank or the receiver thereof on the defendant's aforesaid claim or demand against such Cooper Exchange Bank shall not be sufficient to pay the amount advanced with interest, and any and all costs and expenses incurred in the collection of the same by the Fourteenth Street Bank, then in that event the defendant agreed to pay any deficiency thus arising. These two instruments must be read together in determining the exact relation between the plaintiff and the defendant. The note was a demand note; was delivered with this assignment, which recited that the defendant delivered a demand note which represented the money advanced at the time the note and assignment were delivered; the money advanced was advanced to the defendant "on account of said claim or demand" which had been assigned to the bank; the plaintiff was authorized to ask, demand, collect, receive, and give acquittance for the same, or any part thereof, in the defendant's name or otherwise; and the advance thus made on account of the assigned claim was to be paid by the money received from the insolvent bank or its receiver; any surplus accounted for to the defendant, or if the amount received by the plaintiff was not sufficient to pay the amount advanced, the defendant promised to pay. Under Judge Werner's opinions in Brooklyn Bank v. Barnaby, supra, it seems to me that there was here an express authority given by the defendant to the plaintiff to receive the amount from the insolvent bank or its receiver on account of the indebtedness represented by the note, and the receipt of such a payment, the statute being not then a bar, was evidence of a new promise which bound the defendant.

The complaint here expressly alleged the making of the note; the delivery of this assignment of the defendant's claim as depositor against the Cooper Exchange Bank or its receiver, and that thereafter the plaintiff paid to the defendant the sums which it had received as the agent of the defendant from the Cooper Exchange Bank or its receiver, and that such receipts were a payment by the defendant. Here the plaintiff advanced to the defendant a sum of money on account of a claim against the Cooper Exchange Bank or its receiver. It took from him a demand obligation for the repayment of that sum.

The defendant authorized the plaintiff to ask, demand, collect, and receive payments made by the Cooper Exchange Bank, and that any balance received in excess of the amount advanced by the plaintiff to the defendant was to be paid to the defendant, and any deficiency over the amount received was to be paid by the defendant to the plaintiff. The receipt of any part of that demand assigned to the plaintiff was, it seems to me, clearly a payment by the defendant on account of the amount advanced, which implied a new promise to pay what was in excess of the amount received from the Cooper Exchange Bank, and that the defendant's express promise to pay any deficiency related to the credit by the plaintiff of the amount that it received as agent of the defendant from the Cooper Exchange Bank.

I think, therefore, that the cause of action was not barred by the statute, and that the judgment must be reversed. As both parties submitted the right to a verdict to the court and there was no request to submit any question to the jury, I think we should now grant the plaintiff's motion, and direct a verdict for the amount then due, $580.34, with interest from December 11, 1912, together with costs in this court and in the court below.

HOTCHKISS, J., concurs.

NOON V. LAWRENCE.

(Supreme Court, Appellate Term, First Department. January 3, 1914.) TRIAL (§ 252*)—INSTRUCTION-EVIDENCE-PAYMENTS.

Where, in an action on an account stated, the books of account offered in evidence disclosed an uninterrupted account in defendant's name, and two certain payments were credited on same, and showed no separate account, as contended by plaintiff, in the name of a committee appointed for defendant on her being adjudged an incompetent, it was error to instruct that there was evidence of only one payment on the account in suit and to authorize recovery by plaintiff on that basis.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.*]

Appeal from City Court of New York, Trial Term.

Action by Patrick Noon against Julia M. Curtis Lawrence. From a judgment entered on a verdict for plaintiff and from denial of new trial, defendant appeals. Reversed, and new trial ordered.

Argued December term, 1913, before SEABURY, GUY, and BIJUR, JJ.

Baylis & Sanborn, of New York City (Frederick H. Sanborn, of New York City, of counsel), for appellant.

John C. Oldmixon, of New York City, for respondent.

SEABURY, J. This is an action upon an alleged account stated. The answer pleads a payment. The amount of the account sued for 3 $1,315.50. An issue of fact was presented as to whether there was an account stated; but, assuming that there was, we think that partial

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

payment was established. The account is alleged to have been stated as of August 1, 1907. It was proved that the defendant paid $780.75 on August 29, 1907, and $500 on December 4, 1907. These payments left a balance due plaintiff's assignor of $34.75. On August 17, 1907, the defendant was adjudged an incompetent in the state of Connecticut and a committee appointed of her property. Subsequently the same persons were appointed as her committee in this state. The respondent claims that after the committee was appointed in this state his assignor charged the services rendered to the defendant to the committee, and that the payments made were credited on account of the amount due from the committee. The books of the plaintiff's assignor, which were offered in evidence, do not show the separate account in the name of the committee, but, on the contrary, disclose an uninterrupted account in the name of the defendant, and the payments mentioned are credited upon that account to the defendant.

The learned trial justice charged the jury as follows:

"If you conclude that the application of the payment ($780.75) was made to her (the defendant's) account, then you may deduct from the alleged account stated that sum of money. There is no other evidence of payment of any kind, of that account, so that if you find that there was an account stated, and likewise find that the application of that payment was made to the personal account of the defendant, as distinguished from the committee's account, then your verdict would be for the plaintiff for the sum of $534.75."

This charge excluded from the consideration of the jury the $500 payment which had been proved, and assumed that there were in fact an account of the committee and an account of the defendant. There is no proof in the case, other than the testimony of plaintiff's assignor, of any account other than that of the defendant. The defendant's counsel duly excepted to this portion of the charge. The books that were offered in evidence showed that the payments were credited to the defendant's account. If the committee made such payment as claimed by the respondent, it must have been made more than one month before their appointment in this state, as they were not appointed until October 7, 1907, and the payment appears by credit entry as of August 29, 1907.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.

DUZETS v. LEVINE et al.

(Supreme Court, Appellate Term, First Department. January 3, 1914.) TROVER AND CONVERSION (§ 22*)-RIGHT OF ACTION-SALES.

Where a seller, before delivery of an engine sold, wrongfully resold it to another, but, before delivery to the second buyer, secured the first buyer's implied consent to the resale, he was not liable to the first buyer for conversion of the engine though such buyer had paid part of the purchase price.

[Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. §§. 152-162, 167-169; Dec. Dig. § 22.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Appeal from Municipal Court, Borough of The Bronx, Second District.

Action by Peter A. Duzets against Benjamin A. Levine and others. From a judgment for plaintiff, defendant named appeals. Reversed, and complaint dismissed.

Argued December term, 1913, before SEABURY, GUY, and BIJUR, JJ.

Samuel D. Matthews, of New York City, for appellant.
Joseph Lichtenberg, of New York City, for respondent.

GUY, J. This action is to recover for the conversion of an engine and is brought against the appellant Levine, the defendant Marine Wrecking Company, which answered but did not defend, and one Bull, a partner of defendant Levine, who was not served. The defense is a general denial.

On April 10, 1913, plaintiff bought from the Globe Contracting Company, a partnership consisting of appellant Levine and defendant Bull, an engine for $625; the sale being made by one Mulholland, who, prior to that time, had been appointed by Bull as attorney in fact in connection with the business of the Globe Contracting Company. Mulholland showed plaintiff his power of attorney and also a letter from defendant Levine stating that Mulholland had a half interest in the engine and was authorized to sell same. At the time of purchasing said engine, plaintiff paid Mulholland $225, in checks, which were subsequently indorsed by the Globe Contracting Company, Mulholland, attorney in fact, and were paid. Mulholland also gave plaintiff, at the same time, a receipt signed Globe Contracting Company, Mulholland, attorney in fact. On or about April 25, 1913, Mulholland sold the same engine to the Marine Wrecking Company for $662.50. Plaintiff learned of this sale and, before delivery of the engine had been made, demanded, on May 10, 1913, the engine from the Globe Contracting Company and defendant Levine, which demand was not complied with. While it is clear on the evidence that plaintiff would not have been entitled to possession of the engine until he paid or tendered the balance of the purchase price thereof to the Globe Contracting Company, had the defendant Levine, by wrongfully delivering the possession of the engine to the Marine Wrecking Company, put it out of his power to deliver the same to plaintiff upon payment of the balance of the purchase price, such wrongful delivery would have constituted a conversion on his part. Kavanaugh v. McIntyre, 128 App. Div. 722, 724, 112 N. Y. Supp. 987; Andrews v. Schattuck, 32 Barb. 396. It does not appear, however, that there was any such wrongful and unauthorized delivery by Levine to the Marine Wrecking Company. The evidence shows a wrongful sale to the Marine Wrecking Company; but, before the sale had been consummated by the delivery of the engine to said purchaser, plaintiff met the defendant Levine with one Reiss, president of the Marine Wrecking Company, and an attorney who represented the Marine Wrecking Company, at the attorney's office; that a conversation there ensued in which it was arranged between Levine, Reiss, and said attorney that the Marine Wrecking Company should

145 N.Y.S.-2