Wheeler v. Simmons

New York Supreme Court

Wheeler v. Simmons

15 N.Y.S. 462, 67 N.Y. Sup. Ct. 404, 39 N.Y. St. Rep. 797, 60 Hun 404, 1891 N.Y. Misc. LEXIS 3278

CourtNew York Supreme Court

DecidedJuly 2, 1891

StatusPublished

Cited by1 cases

This text of 15 N.Y.S. 462 (Wheeler v. Simmons) 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

Wheeler v. Simmons, 15 N.Y.S. 462, 67 N.Y. Sup. Ct. 404, 39 N.Y. St. Rep. 797, 60 Hun 404, 1891 N.Y. Misc. LEXIS 3278 (N.Y. Super. Ct. 1891).

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Opinion

Pratt, J.

This action was commenced July 5, 1890, upon a promissory note for $2,000, dated September 22, 1874. The answer set up the statute of limitations and a discharge in bankruptcy, dated 12th day of February, 1879, which discharged the defendant from all debts existing on the 4th of September, 1877. Several payments had been made upon the note from January 9, 1879, up to 1886. These payments were relied on to take the case out of the statute of limitations, and the court found ás a fact that these, having been made prior to the statute of this state, passed June 8, 1882, constituted a new promise, and, as matter of law, that the claim was not barred. There is no evidence to sustain a new promise except the payments, and therefore the question is clearly raised whether a payment after a discharge in bankruptcy revives the debt. This question has been recently passed upon by the court of appeals in the case of Lawrence v. Harrington, 122 N. Y. 408, 25 N. E. Rep. 406, where it was held that a promise by which a debt is discharged in bankruptcy can be renewed must be an express and distinct promise, and that such a promise cannot be implied from merely proof of partial payments. The finding of fact in the present case has no evidence to support it except the payments. It follows that the judgment must be reversed, and a new trial granted, costs to abide the event.

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Pratt, J.

This action was commenced July 5, 1890, upon a promissory note for $2,000, dated September 22, 1874. The answer set up the statute of limitations and a discharge in bankruptcy, dated 12th day of February, 1879, which discharged the defendant from all debts existing on the 4th of September, 1877. Several payments had been made upon the note from January 9, 1879, up to 1886. These payments were relied on to take the case out of the statute of limitations, and the court found ás a fact that these, having been made prior to the statute of this state, passed June 8, 1882, constituted a new promise, and, as matter of law, that the claim was not barred. There is no evidence to sustain a new promise except the payments, and therefore the question is clearly raised whether a payment after a discharge in bankruptcy revives the debt. This question has been recently passed upon by the court of appeals in the case of Lawrence v. Harrington, 122 N. Y. 408, 25 N. E. Rep. 406, where it was held that a promise by which a debt is discharged in bankruptcy can be renewed must be an express and distinct promise, and that such a promise cannot be implied from merely proof of partial payments. The finding of fact in the present case has no evidence to support it except the payments. It follows that the judgment must be reversed, and a new trial granted, costs to abide the event.

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Bluebook (online)

15 N.Y.S. 462, 67 N.Y. Sup. Ct. 404, 39 N.Y. St. Rep. 797, 60 Hun 404, 1891 N.Y. Misc. LEXIS 3278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheeler-v-simmons-nysupct-1891.

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