#### Horatio P. Allen, Appellant, *against*Henry Trisdorfer, Respondent.

(Decided February 6th, 1888.)

In a letter written by a debtor to his creditor, before the expiration of the statutory period of limitation of the debt, after saying that he intended to pay the amount due, and would pay as soon as he possibly could, he added, “ Of course, if you wish to sue me, I cannot prevent you, as the claim is just, but I fail to see that you will be paid any sooner by that method, as I do not dispute your claim.” *Held,*that-there was an acknowledgement of the debt, wholly independent of the promise to pay, sufficient to take the case out of the statute, although the promise was conditional.

Appeal from a judgment of the General Term of the City Court of New York reversing a judgment of that court entered upon the decision of the court on a trial without a jury and ordering a new trial.

The facts are stated in the opinion.

*2*John B. Talmadge,*for appellant.

An “ acknowledgment ” of indebtedness is equally as effective as. a “ promise,” to take a case out of the statute of limitations (Code Civ. Pro. § 395). The letter of defendant furnished abundant evidence of an “ acknowledgment ” of his indebtedness to plaintiff to take the case out of the operation of the statute *(Mc Cahill*v. Mehrbach, 37 Hun 504; *Shapley*v. Abbott, 42 N. Y. 443; *McCrea*v. *Purmort,*16 Wend. 460; *Loomis*v. Decker, 1 Daly 186).

The cases cited by the General Term below do not sustain the decisions. In *Wakeman*v. *Sherman*(9 N.Y. 85), the sole issue was a new promise; and so as to *Tompkins*v. Brown (1 Denio 247), and *Cocks*v. *Weeks*(7 Hill 45). And *Shapley*v. *Abbott (supra),*instead of supporting the decision of the Geneial Term below, does in fact support the decision and judgment of the trial judge, by distinguishing between an agreement or promise, and an acknowledgment of indebtedness.

*Armour Q. Anderson,*for respondent.

The letter must be taken as a whole, for the rule is that in the construction of instruments in writing regard must be had and full effect given to the entire instrument (McAdam, Landlord & T., 2d ed. p.181; *Farmers’ Bank v. Clark,*4 Leigh 603; Angel Limitations, § 236; *Hayden*v. *Williams,*7 Bing. 105; *Bangs*v. *Hall,*1 Pick. 168). The letter at most is only a conditional promise by defendant to pay when he was able. The acknowledgment of a debt accompanied by a conditional promise to pay will not avail *(Tompkins*v. *Brown,*1 Denio 247; *Wakeman*v. *Sherman,*9 N. Y. 85 ; *Cocks*v. *Weeks,*7 Hill 45; *Howe*v. *Welch,*2 How. Pr. N. S. 507; *Ingersoll*v. *Rhoades,*Hill & Den. Supp. 371; *Tebo*v. *Robinson,*100 N. Y. 27; *Tanner*v. *Smart,*6 Barn. & C. 605; *Ayton*v. *Bolt,*4 Bing. 105; Angel Limitations § 235.)

Per Curiam.

[Present, Larremore, Ch. J., Allen and Bookstaver, JJ.]—This case having been so thoroughly discussed and examined in the court below, it seems unnecessary to do more than state the conclusion reached by the court upon this appeal.

*3The rent sued for was due April 1st, 1879. The suit for its recovery was not commenced until August 23rd, 1886. The statute of limitations was interposed as a defense, and the sole question to be decided is, whether or not the following letter, written and sent by the defendant to plaintiff’s agent, takes the case out of the operation of section 395 of the Code of Civil Procedure :

> “ N. Y. March 3rd, 1881.

> “ Aug. H. Allen, Esqr.,

> 320 Broadway:

> Dear Sir,—Yours of the 24th inst. came to hand, and in reply would say that when I made you the promise, I honestly intended and still do intend to pay you amount due you, but I trust you will believe me, when I tell you it was utterly impossible up to this time to do so, and can only again say that I will pay you as soon as I possibly can. Of course, if you wish to sue me, I cannot prevent you, as the claim is just, but I fail to see that you will be paid any sooner by that method, as I do not dispute your claim.

> Hoping you will have a little more patience, and that you may soon hear from me, I remain,

> Yours Truly,

> H. Trisdorfer.”

We think the letter in question explicitly shows an unqualified acknowledgment in writing of the existing debt as well asan unconditional promise to pay the same. It has the same effect as if the defendant, on March 3rd, 1881, had given his note of hand to pay the debt. The fact that the acknowledgment and promise were made prior to the expiration of the six years limitation of the statute, cannot destroy the legal effect of such acknowledgment and promise. The letter of March 3rd, 1881, added nothing and could not have increased the liability of the defendant then existing. Its evident intention was to secure to the plaintiff the ultimate recovery of his debt.

We have examined the authorities cited upon the brief *4of the counsel for the defendant, and find in-each'case the acknowledgment and promise'were conditional in- character and result. The case at bar is not within the line of- those authorities. As before stated, it is- not necessary to review them in" detail.

We have reached the conclusion that the-judgment of the General Term should be reversed, with-costs,'and that of the Special Term affirmed; and upon the stipulation given judgment absolute is hereby ordered .against the defendant.

On motion by defendant for- a reargument, or for leave to appeal to the Court of Appeals, the following, opinion was delivered, April 1st, 1889.

Per Curiam.

[Present, J. F. Daly and Van Hoesen, JJ.]—The writing signed by the defendant contained an acknowledgment of the debt, wholly independent of the promise to pay and not coupled with such promise. After saying that he honestly intended and still does intend to pay plaintiff the amount due him, but that he trusts that plaintiff will believe him when he tells him that it was utterly impossible tip to that time to do so, and that he can only say again that he will pay as soon as he possibly can, defendant goes on to say:— “ Of course, if you wish to sue me, I cannot prevent you, as the claim is .just, but I fail to see that you will be paid any sooner by that method, as I do not dispute your claim.”

It is evident from this latter part of his letter that defendant wished to make an acknowledgment of the justice of the claim wholly distinct from his promise to pay it, and upon such independent acknowledgment plaintiff was entitled to recover. There may be in the same writing an acknowledgment and a promise, and if they are distinct and must be so read, the acknowledgment will support a present action- notwithstanding the promise is conditional. If the promise-were coupled with the acknowledgment, it would be otherwise.

The motion should be denied, with $10 costs.

Judgment absolute for plaintiff.