Opinion
Argued October 20th, 1870
Decided October 25th, 1870
Charles E. Patterson, for the appellant.
James Gibson ( Cornelius L. Allen with him), for the respondent.
The notes set forth in the complaint fell due in September, 1845, and January, 1846. Consequently, at the time of the adoption of the Code, a right of action upon them had accrued, and such right had not been barred, but was subsisting.
The 110th section of the Code, upon which the respondent relies, is contained in title two, and provides that no acknowledgment or promise shall be sufficient evidence of a new or continuing contract whereby to take a case out of the operation of that title, unless contained in some writing, signed by the party to be charged.
Title two repeals the statute of limitations as contained in the Revised Statutes, and substitutes new provisions varying in several respects from the former statute; but it is expressly declared in the first section of the title that "this title shall not extend to actions already commenced, or to cases where the right of action has already accrued." Those cases are declared to be governed by the former statute of limitations.
This exemption has been construed by this court as applying only where there was a subsisting right of action at the time of the adoption of the Code, and not to cases in which the right of action had been theretofore barred. But in the case of Van Allen v. Feltz (1 Keyes, 332), it was decided that the right of action referred to in the exempting clause was the original cause of action, and not that resulting from the new promise; and that while the original cause of action was subsisting at the time of the adoption of the Code, an oral promise was valid.
That decision is controlling in this case, and does not conflict with the decisions in Esseltine v. Weeks (2 Kern., 635), and McLaren v. Martin (9 Tiffany, 88). In both of those cases the debt had been barred by the statute before the adoption of the Code, and it was held that the exemption did not apply for that reason.
The referee therefore erred in excluding evidence of an oral promise to the plaintiff to pay the note, and on that ground the judgment should be reversed and a new trial ordered.
All the judges concurring, except PECKHAM, J., who, having been a member of the General Term below, did not sit. Judgment reversed and new trial ordered.