Cahn v. Reilly

113 N.Y.S. 545

Opinion

FORD, J.

Plaintiff sues for the balance due on an account which was opened in 1882. ' The defendant is a fireman. The account stopped in 1886, when defendant’s connection with the fire department ceased. On his return to the department in 1898 he told plaintiff “to continue the account.” Plaintiff claims that on March 4, 1902, defendant paid him $3, and he relies on this payment to save the account from the bar of the statute of limitations. Plaintiff says the defendant "paid on account; that is all. He says: ‘There is $3 on account.’ ”

The burden was on the plaintiff .to show the payment, and that it was accompanied by circumstances amounting to an absolute and unqualified acknowledgment by the debtor of more being due, from which á promise may be inferred to pay the remainder. The plaintiff has not sustained this burden, and on the authority of Crow v. Gleason, 141 N. Y. 489, 36 N. E. 497, the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

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