Opinion
March 16, 1932.
A.H. Waisman, for the plaintiff.
Cohen Haas, for the defendant.
The question presented in this case is whether secondary evidence of a written acknowledgment of indebtedness is admissible for the purpose of extending the operation of the Statute of Limitations. A recent case in the City Court of the City of New York lays down the rule, without citing any authorities, that under section 59 of the Civil Practice Act, such secondary evidence is inadmissible. ( Sitmore v. Kimborofsky, 142 Misc. 514.) I have been unable to find any other reported case in this State in which the question was squarely presented.
At common law there was no requirement that a subsequent promise or acknowledgment, in order to toll the Statute of Limitations, must be in writing. ( Gibbons v. McCasland, 1 B. Ald. 690; Shapley v. Abbott, 42 N.Y. 443, 446; Williston Cont. § 164.)
Under the early common-law cases, the possibility of construing a casual remark incorrectly heard or remembered, as an "acknowledgment" of a debt was so great that the Statute of Limitations was on the verge of becoming a dead letter when Lord Tenterden's Act (9 Geo. IV, chap. 14 [1828], effective Jan. 1, 1829) was promulgated. It provided that "In actions of debt or upon the case grounded upon any simple contract no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactments or either of them [the Statute of Limitations], or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby; * * *." Two years after the enactment of this provision it was held that secondary evidence was admissible to prove that the contents of a lost letter were such as to toll the Statute of Limitations. ( Haydon v. Williams, 7 Bing. 163.) In Read v. Price. ([L.R. 1909] 2 K.B.724; 17 Ann. Cas. 171), COZENS-HARDY, M.R., declared that it seemed "quite clear that, although the statute says the acknowledgment must be in writing, you may prove the writing in any way. You may prove the existence of the writing by the ordinary law of evidence, and when the writing is lost, and the proof of the loss is satisfactory to the court, you may give secondary evidence of the contents of the lost document, just as in cases where writing is required under the statute of frauds you can always prove the existence of the writing by parol evidence, if proof is given of the loss of the written document" (p. 730).
FARWELL, L. J., in the same case, reaches a similar conclusion by resorting to the analogy of a lost will. "As to the admissibility of the secondary evidence," he writes, "that question is concluded by authority in the well-known case of Sugden v. Lord St. Leonards (L.R. [1876] 1 P.D. 154). COCKBURN, C.J., says this (ibid., at p. 220): `When the idea of Lord ST. LEONARDS having himself destroyed the will is disposed of, the next question which presents itself is, whether the will having been lost, secondary evidence can be given of its contents. Now that matter is disposed of by the authority of Brown v. Brown ([1858] 8 El. Bl. 876; 92 E. C. L. 876) which I think has been recognized as perfectly sound. There Lord CAMPBELL says: "Parol evidence of the contents of the lost instrument may be received as much when it is a will as if it were any other document," and in that I, for one, most entirely concur'; and all the other members of the Court of Appeal took the same view" (p. 737).
In this State the enactment of a statutory provision similar to Lord Tenterden's Act was vigorously advocated by the Field Commission which drafted our first Code of Procedure. The provision which they recommended was immediately enacted (Laws of 1848, chap. 379, § 90) and provided: "Where the time for commencing an action arising on contract shall have expired, the cause of action shall not be deemed revived by an acknowledgment or new promise, unless the same be in writing, subscribed by the party to be charged thereby." In recommending this provision, the Commissioners declared: "* * * We have retained the substance of the English Act, though we have endeavored to condense its phraseology, without altering its spirit." (First Report of the Commissioners on Practice Pleadings, [1848] p. 121.) A year later this provision, which did not affect acknowledgments made before the expiration of the limitation period, was extended to the full scope of the English statute, following its language closely and reading as follows: "No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this title, unless the same be contained in some writing signed by the party to be charged thereby; * * *" (Code Proc. § 110; Laws of 1849, chap. 438.)
In 1876, on the report of the Throop Commission on Statutory Revision, the statute was reframed and embodied in section 395 of the Code of Civil Procedure, reading as follows: "An acknowledgment or promise, contained in a writing signed by the party to be charged thereby, is the only competent evidence of a new or continuing contract, whereby to take a case out of the operation of this title * * *." (Laws of 1876, chap. 448, § 395.) This section, practically unchanged, is now section 59 of the Civil Practice Act.
The defendant contends that there is a material difference between the statute of 1849 and that of 1876; that what was formerly a requirement of substantive law has now been made a rule of evidence, a rule of exclusion to be strictly and literally applied. I find no such radical difference in the two statutes. The revisers of 1876 clearly had no such change in mind. "It has been necessary," they wrote, "to subject nearly every section to some noticeable change in phraseology. * * * Accordingly, where the sole object of an amendment is to conform the syntax, or the terms used, to those of other portions of the bill, to prune down redundant expressions, or otherwise to attain greater simplicity and clearness, without material change of the meaning, the amendment has not been noticed in the table." (Report of the Commissioners to Revise the Statutes, 1876, p. 505.)
The amendment incorporated in section 395 of the Code of Civil Procedure was not included in the table attached to the report. The only inference to be drawn from such omission is that no "material change of meaning" was intended.
The defendant further urges that to allow secondary evidence of the written acknowledgment or promise would be to subvert the statute; that it would let in all of the evils, the frauds and the perjuries which it was the policy of the law to shut out. The Statute of Frauds was enacted to prevent like mischief, yet secondary evidence of the contents of a lost writing has been held to be admissible thereunder. (See Metcalf v. Van Benthuysen, 3 N.Y. 424, 428; Matter of Devoe, 113 Iowa 4, 10.)
The law is most zealous in prescribing the formal requisites of a will; no greater safeguards are thrown around the execution of any other instrument. Yet secondary evidence of a lost or destroyed will has always been held to be admissible. ( Harris v. Harris, 26 N.Y. 433; Matter of Kennedy, 167 id. 163.) Where in an action to establish a lost or destroyed will, the Legislature desired a stronger quality of secondary evidence, it made specific provision therefor by statute. (Surr.Ct. Act, § 143 Surr. Ct. Proc. Act.) "In the primitive medieval conception a document directly affecting rights of property or contract (as we should nowadays say) was looked upon as having in itself an extrinsic effect. Its physical, material existence was what counted, and nothing else." (Wigm. Ev. [2d ed.] § 1177.) Thus in 1402, in an action on a bond that was burned or lost, recovery was denied, the suitor being admonished "this would be deemed your own foolishness in not better keeping it." (Id.) The old notion that a lost document was a lost right disappeared from the law in the early 1800's. It is now the general rule that secondary evidence of any document is, under proper conditions, admissible. "The whole theory of secondary evidence depends upon this, that the primary evidence is lost, and that it is against justice that the accident of the loss should deprive a man of the rights to which he would otherwise be entitled." ( Sugden v. Lord St. Leonards, supra, 238, per JESSEL, M.R.) If the Legislature, in dealing with the Statute of Limitations, had desired to change a rule so deeply ingrained in the law, it would have indicated its intention in clear terms.
The language of the statute, its history, its interpretation by the courts of England whence it was derived, and the construction placed upon other statutes having a similar purpose, all lead to the conclusion that a writing sufficient to extend the bar of the Statute of Limitations may, if lost or destroyed, be proved by secondary evidence. (See Wood Limitation of Actions, § 84.)
Motion for reargument granted, but on the reargument the original determination is adhered to.
Settle order.