The New York herald., 1871-05-11
SUPREME C0UaT-SENERAL TERM.
The statute Of Limitations Invoked TO &c
Rid OF Paying an Old Debt.

Vbo statute Of Limitations Invoked TO Gel
Kid Of Paying an Old Debt.
Before Judges lngraham and CardoZO.
Cup,dta John Graham vs. A. A. Se,orea.--In 1851
the plaintiffs sold in San Francisco Cal. vessel for
s22,50O to the defendant for which he paid $lO 500
IN cash aud gave drafts for the balance. These
drafts were not paid. The defendant meeting with
q reverse or fortune the plaintiff did not push him
for payment, and, In fact, did not he alleges,
molcst hun at all. preferriDg to give him his ow II
time. and fully believing that as soon he was
able he would pay him. At length the tide OF for
tune turned In his favor aud he become wealthy,
upon which Captain Granam reminded hlm of tile
money be owed MIN, ana expressed q hope that
he would pay nn. instead OF dong so,
.ne Statute 81 a"s heeapo the RsIa pa
tr commenced u suit 10 enforce the payment. The
defendant did not deny the Indebtedness but here
entered the same plea, ana to make 1t effective
swore that he had been resident OF tins State from
1855 up to the present time, although Captain
Alderman In San Francisco during portion OF this
time. Plaintiff claims about $4,000. being the
pound interest. At the original trial verdict was
appealed to this court. The following is
THE DECIsi0N-
Judge Cardozo said it is no. disputed that the
statute OF Limitation Is defence to the second cause
OF action contained IN the complaint. l am OF the
opinion tnat that plea Ia also an answer 10 the first
cause OF action, and that whether the amendment
OF 1867 Is or not TO be considered applicable to the
case. II that amendment applies. or course the
period OF Limitation would have expired But II 1t
does not and express no opinion on that point,
still think the cause OF action barred even 0ebarred
from the referees calculation Uhe absence In
Europe and Missour). which the appellant insists
the referees should have deducted. The point where
differ from the learned counsel for the appellant Is
1s to the time when the cause Of action occurred.
He claims that the payment OF 81 August 1852
was novat0n OF the contract and that the statute
only commenced to run from that period. This, l
think, is mistake so far Seloyer Is concerned
The partnership OF Seover h Co., was dissolved In
October 1861, and SelOvcr transferred all his inter-
est In It's property assets and credits to Middleton,
liabilities. The payment ~ August. 1852 was made
ny Middleton after the dissolution. There Is no ev.
dence that Selover had any thing to do with 1t, or
that he authorized II any way. II Is settled that
such o payment mas no effect 50 far as he Is con-
cerncO (Van Keuren Va. Parmelce N. Y, 623;
Wincheli vs.. Hicks ls N. Y, 55S. Whether the pay
ment be made before or after the action Is barred
by the statute OF limitation makes no difference
;S VS. EsefG Sfern @ h
se as IT. to the the B33rSS nj maze
The statement OF the defendant being auction
eer and alderman In San Franisco subsequent TO
1855, is said 10 be newly discovered evidence, and
upon this the paintln VIII carry the case 10 tue
Court Of Appeals. ~, - =
- Geherel Term Notice.
The Justices OF the General Term OF the supreme
Court in the first department do hereby designate
the times and places for holding the General Terms
or the said court the FIRST department follows,
viz:--0n the first Monday of January, April, June
and November, In the years 1871 ant isi2 o. the
Court House In the city OF New York