MILLER, J.

If the payment upon the note in question, on the 22d day of February, 1875, of $88.78, by the maker and the principal debtor, Ira W. Littlefield, was made by him in the name and behalf of the appellant and as his authorized agent, such payment was an acknowledgment of the debt, which was effectual to take the case out of the statute of limitations, and a promise of the appellant to pay the balance of the note. If it was authorized by the defendant, it was the same as if it was his own act and an unequivocal recognition by him of the existence and validity of the debt. It is by reason of such a recognition that partial payments are available in cases of this kind. The reported cases all agree upon this question. ( Shoemaker v. Benedict, 1 Kern. 178, 185, 190; First Nat. B'k of Utica v. Ballou, 49 N.Y. 155; Harper v. Fairley, 53 id. 442; Winchell v. Hicks, 18 id. 558.) The plaintiff sought to establish such authority by proof to the effect that in the fall of 1874, in an interview with the appellant, he had a conversation with him in regard to the note in question; that he spoke to him about the note, stating that the payments were not made as they should be, and that he should hold him responsible; that appellant requested him to make no costs, that his son was going to be home soon and he would see him; that he said "tell him for me that he must pay the interest and as much of the principal as he can and that I say so." That the plaintiff then told him that if it was his choice he would make no costs. Then he said "wait until Ira comes home." Ira returned from the west and came to plaintiff's house in the winter of 1875. Plaintiff then told him he had been crowding his father upon the note and the latter had advised him to hold on until he, Ira, came home, and his father wanted him to say to him that he must pay the interest on that note and as much of the principal as he could; that Ira then said he would do all he could, and some months afterward came and paid $88.78, and said that was all he could pay him then. There was also proof showing that Ira had told his father that he had made the payment, and his father replied that it was all right. The evidence in regard to the conversation between plaintiff and defendant was contradicted by the defendant, and the testimony as to the interview with Ira before the payment was made was also contradicted by Ira, and there was a conflict on the trial on the question whether any payment had been made by reason of the alleged interview between the plaintiff and the appellant, and the conversation that took place at that time. The disputed question of fact thus arising was presented to the consideration of the jury, who found adversely to the defendant in this respect. The question, however, as to the legal effect of the testimony given was raised by a motion for nonsuit at the close of the plaintiff's case, which was denied, and by requests to charge the jury, which were refused, and by exceptions to the refusals as well as to the charge made.

In regard to the motion for a nonsuit the distinct question is presented whether there was any evidence to submit to the jury as to the authority of Ira, as the authorized agent of the appellant, to make the payment in question. In Winchell v. Hicks ( supra), the action was brought upon a joint and several promissory note, made by a principal and three sureties, which became due before the Code of Procedure went into operation. Five years afterward the holder called upon two of the sureties for payment, and was referred by them to the principal, who was informed of such reference, and made a payment, and it was held that the payment was such an acknowledgment of liability as to arrest the running of the statute of limitations against the two sureties. In the case cited ALLEN, J., at page 561, says the question is, "whether there is any direct recognition of the debt, or of the agency of Bowman, who made the payments, by the other defendants," and then after proceeding to state the testimony in regard to the subject somewhat in detail, he lays no stress upon the evidence as showing that any agency was created, and says: "It is sufficient that, so far as Tanner is concerned, there was an express recognition, an unqualified and subsisting admission of the debt, and of his present liability and willingness to pay it," * * * and that while he was liable to pay it the judge asks, as to Hicks, "was not his declaration a sufficient recognition of the debt to bind him?" He also holds at pages 565 and 566 that the verbal acknowledgment binds, because the debt was contracted prior to the Code, and was not within the provisions requiring such acknowledgment to be in writing. DENIO, J., and JOHNSON, Ch. J., concurred on the ground of the verbal acknowledgment, because the debt was contracted prior to the Code and was not within the provision requiring such acknowledgment to be in writing. The head-note of the case also shows that the decision of the court was upon this ground, and none other is stated therein, viz.: That the request of the sureties to get pay of the maker was obligatory as a verbal acknowledgment of the debt. It does not appear that the case was decided upon the ground that an agency was conferred by the request of the one paying to bind the other by his own act and payment.

It would, therefore, seem that the case cited is not an authority for the doctrine that an agency was created under the circumstances stated in said case. This case is referred to in some subsequent decisions. In the case of Payne v. Gardiner ( 29 N.Y. 146), MULLIN, J., who wrote the opinion, held that as the transaction was one of deposit and not a loan, it was not necessary to inquire, and said nothing as to the effect claimed, for payments made, and WRIGHT, J., in a dissenting opinion says: "The case Winchell v. Hicks affords no countenance to the position of the plaintiff's counsel. That action was upon a joint and several note, made by a principal and three sureties and the single question was whether there had been a verbal recognition of liability by the two, the sureties, so as to arrest the running of the statute of limitations," and after reciting the evidence of what the sureties said in Winchell v. Hicks, the judge further says: "This was held to be an acknowledgment of the debt and a sufficient recognition of liability by Tanner and Hicks to bind them." In Van Alen v. Feltz (1 Keyes, 332) the question was whether section 110 of the old Code extended to parol promises to pay debts existing when it was enacted, and it was held it did not. The court said: "This precise point seems to have been decided by this court in Winchell v. Hicks ( 18 N.Y. 558). One of the points ruled was that the case did not come within the provision of the Code, and the debt might be revived or continued without any written promise or acknowledgment." (See, also, Lansing v. Blair, 43 N.Y. 48, which approves this case.) It thus seems that in the cases cited where Winchell v. Hicks is referred to, it is uniformly cited as decided upon the question as to a new promise having been made. The learned counsel for the respondent relied upon several of the reported cases which, it is claimed, hold that payment, under circumstances like those here presented, is a payment by the authorized agent on behalf of his principal, but we are of the opinion that none of them sustain the position contended for. The case of Smith v. Ryan ( 66 N.Y. 352; 23 Am. Rep. 60) has no application to the facts he presented. It is true that ALLEN, J., sustains the principle of agency as binding under the rules of common law, but he does not decide that a payment, made under the facts proven in the case at bar, is binding upon the principal. On the contrary, it is laid down that a payment which is to operate as an acknowledgment must be made by the debtor or his authorized agent, that is, an agent having authority to make a new promise or to perform for the party the very act which is to be the evidence of a new promise.

In the case of Harper v. Fairley ( 53 N.Y. 442), which is also relied upon, allusion is made to the case of Winchell v. Hicks as holding that a part payment by a surety does not relieve the demand against the principal, unless made at the express request of the principal. There can be no doubt of the correctness of this rule, but it is not apparent how its application can aid the plaintiff's case. We have examined the cases of Munro v. Potter (34 Barb. 358), and Miller v. Talcott (46 id. 171; affirmed in 54 N.Y. 114), and we are unable to discover that either of them sustain the doctrine contended for by the respondent's counsel. It will be seen upon a review of all the cases that there is no authority for the doctrine that a payment made under the circumstances proved in this case and without some authority, from one of the joint makers of the note, is binding upon the others. We think that no such payment was made here by the request and authority and by the agent of the appellant, and therefore it was not binding upon him. The most that he did was to urge the holder of the note to collect it of the maker. This conferred no direct agency upon the maker to pay for the surety, and to sanction such a rule would open wide the door to evade the effect of the statute of limitations where payment had not been made by the party sought to be made liable. It was intended by the Code of 1848, section 110, that all future acknowledgments, to take a case out of the statute, should be in writing. The object of this provision was to prevent perjury and to compel a party who had deferred the collection of a debt for so long a period as the statute prevented him from collecting the same, to furnish written proof of the acknowledgment provided for. The same rule is applicable to payments which take the case out of the statute. The payment itself is not a declaration, it is an act done by the party which is unequivocal and which of itself shows a recognition of the existence of the debt. While authority can be conferred on another to make such payment such authority should be established by plain and clear proof and not rest upon proof showing that the debtor urged the creditor to collect the debt of the principal, as is the case here. It follows that the judge erred in refusing to grant the motion made by the appellant for a nonsuit, and in his charge to the jury.

We are also of the opinion that there was no ratification by the appellant of the payment made by his son. The most that can be claimed is that the appellant expressed himself as gratified that his obligation on the note was decreased. This was not a ratification within the authorities. In the case of The First Nat. B'k v. Ballou ( 49 N.Y. 155), relied upon by the respondent's counsel, it was proved that there was an express ratification of the payments, receipts had been given stating in substance that plaintiff received the payments from defendant by the hand of the maker, and that a copy of the receipts with statement annexed was shown to Ballou by plaintiff's cashier, who informed Ballou that he had given the same. Ballou examined them and pronounced them all right.

No other points made require special attention and for the errors stated the judgment should be reversed and a new trial granted, costs to abide the event.

All concur.

Judgment reversed.