Van Rensselaer v. Livingston

12 Wend. 490

• Court: New York Supreme Court
• Decided: October 15, 1834
• Status: Published

Opinion

By the Court,

Sutherland, J.

The question in this case is whether the provision of the revised statutes which requires a written acknowledgment, to repel the presumption of payment of a sealed instrument, after the expiration of 20 years, applies to pre-existing demands, or whether it is prospective only. The language of the section is clearly prospective. 2 R. S. 301, § 48. It is as follows : “ After the expiration of twenty years from the time a right of action shall accrue upon any sealed instrument for the payment of money, such right shall be presumed to have been extinguished by payment; but such presumption may be repelled by proof of payment of some part, or by proof of a written acknowledgment of such right of action within that period.” Before the passage of this act, a verbal acknowledgment or recognition of the debt was sufficient; and where such acknowledgment had been made, the party had a right to repose upon it, and continue his indulgence to his debtor. To apply this statute to such a case would be grossly unjust: such never could have been the intention of the legislature. It would in such a case, be a direct infringement of a vested right, and not a mere modification of the remedy. 4 Wendell, 206. 10 id. 363.

The acknowledgment of the defendant was abundantly sufficient to rebut the presumption of payment. He admitted it to be an existing, debt, and expressed his intention to apply to the plaintiff for an abatement of interest. Less is required in such a case than would be necessary to take a case out of the statute of limitations. >

New trial denied.