Graham v. Selover , 59 Barb. 313 ( 1871 )

By the Court, Cardozo, J.

It is not disputed that the statute of limitations is a defense to the second cause of action contained in the complaint. I am of opinion that that plea is also an answer to the first cause of action, and that whether the amendment of 1867 is or not to be considered applicable to the case. If that amendment applies, of course the period of limitation would have expired. But if it does not—and I express no opinion on that point—I still think the cause of action barred, even deducting from the referee’s calculation the absences in Europe and Missouri, which the appellant insists the rfeferee should have deducted. The point where I differ from the learned counsel for the appellant is as to the time when the cause of action accrued. He claims that the payment of the $4000 in August, 1852, was a novation of ■ the contract, and that the statute only commenced to run from that period. This, I think,- is a mistake, so far as Selover is concerned. The partnership of Selover & Co. was dissolved in October, 1851, and Selover transferred all his interest in its property, assets and credits to Middleton, who agreed to1 indemnify him against the debts and liabilities.

[First Department, General Term, at New York, April 4, 1871.

The payment in August, 1852, was made by Middleton after the dissolution. There is no evidence that Selover had anything to do with it, or that he authorized it in anyway. It is settled that such a payment has no effect, so far as he is concerned. (Van Keuren v. Parmelee, 2 N. Y. 523. Winchell v. Hicks, 18 id. 558.) Whether the payment be made before or after the action is barred by the statute of limitations, makes no difference. (Shoemaker v. Benedict, 1 Kern. 176.) In neither case does the payment affect the running of the statute, as to the partner who did not make or authorize it.

The judgment should be affirmed.

Ingraham, P. J., and Cardozo and Geo. G. Barnard, Justices.