McNamee v. Tenny

New York Supreme Court

McNamee v. Tenny

41 Barb. 495, 1864 N.Y. App. Div. LEXIS 28

CourtNew York Supreme Court

DecidedMay 2, 1864

StatusPublished

Cited by4 cases

This text of 41 Barb. 495 (McNamee v. Tenny) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McNamee v. Tenny, 41 Barb. 495, 1864 N.Y. App. Div. LEXIS 28 (N.Y. Super. Ct. 1864).

Pincite

Opinions

Leonard, J.

The acknowledgment need not express any intention to pay. An intention to pay is to be presumed. It is of very little consequence what was the intention of the debtor in this respect. If he acknowledges the existence of the debt, in writing, the provisions of the law are met, and the statute of limitations has not attached. In the absence of proof that other demands existed to which the acknowledgment of the defendant might apply, the presumption is that it applied to the demand proven. (Davenport v. Gilbert, 6 Bosw. 180.) The evidence adduced removed the uncertainty or doubt, if any existed, and was in my opinion admissible.

There is nothing in Winchell v. Hicks (18 N. Y. Rep. 560) adverse to a recovery in this case.

The plaintiff is entitled to judgment, with costs.

Clerke, J. The chief difficulty which first occurred to me in this case was the want of an explicit acknowledgment, specifying the debt. But I find in the second letter of the defendant, in a postscript, a sufficient identification of the debt. He says the amount of the plaintiff’s debt, at 20 per cent, would be $108.09 cash. On referring to the note we find it to be $540.42, which at 20 per cent would be the .amount mentioned.

[507]*507I think therefore this was a sufficient acknowledgment, and that the plaintiff is entitled to judgment, with costs.

Free access — add to your briefcase to read the full text and ask questions with AI

Leonard, J.

The acknowledgment need not express any intention to pay. An intention to pay is to be presumed. It is of very little consequence what was the intention of the debtor in this respect. If he acknowledges the existence of the debt, in writing, the provisions of the law are met, and the statute of limitations has not attached. In the absence of proof that other demands existed to which the acknowledgment of the defendant might apply, the presumption is that it applied to the demand proven. (Davenport v. Gilbert, 6 Bosw. 180.) The evidence adduced removed the uncertainty or doubt, if any existed, and was in my opinion admissible.

There is nothing in Winchell v. Hicks (18 N. Y. Rep. 560) adverse to a recovery in this case.

The plaintiff is entitled to judgment, with costs.

Clerke, J. The chief difficulty which first occurred to me in this case was the want of an explicit acknowledgment, specifying the debt. But I find in the second letter of the defendant, in a postscript, a sufficient identification of the debt. He says the amount of the plaintiff’s debt, at 20 per cent, would be $108.09 cash. On referring to the note we find it to be $540.42, which at 20 per cent would be the .amount mentioned.

[507]*507I think therefore this was a sufficient acknowledgment, and that the plaintiff is entitled to judgment, with costs.

Cite This Page — Counsel Stack

Bluebook (online)

41 Barb. 495, 1864 N.Y. App. Div. LEXIS 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnamee-v-tenny-nysupct-1864.

Opinions

Related

Cite This Page — Counsel Stack