Opinion
March 1, 1943.
Appeal from Municipal Court of the City of New York.
Order of the Appellate Term reversed on the law and the facts and the judgment of the Municipal Court reinstated, with costs in this court and in the Appellate Term. The letter of August 5, 1940, written by the defendant, sufficiently acknowledged the indebtedness. Assuming that the promise to pay therein was conditional, the proof was ample to warrant a finding that the existence of the condition had been established, that is, the ability to pay, which removed the bar to the Statute of Limitations. The trial court was not obligated to accept the bona fides of all of the indebtedness asserted by the defendant, in view of the manner in which he conducted his business affairs. (Civ. Prac. Act, § 59; Manchester v. Braedner, 107 N.Y. 346; Benedict v. Slocum, 95 App. Div. 602; Tebo v. Robinson, 100 N.Y. 27; Kahn v. Crawford, 28 Misc. 572.) Close, P.J., Carswell, Johnston, Adel and Taylor, JJ., concur.