In the Littlefield Case (91 N. Y. 203) one of three makers of a joint and several promissory note, who in fact signed it as surety, upon being applied to for payment, requested the payee to tell the principal that he must make a payment thereon and that lie (the surety) said so. The payee made the statement to the principal as. requested, , who promised to and did subsequently make a payment; this he reported to the surety, who in response stated that it was all right. In an action upon the note it was held that these facts did not show an authority conferred upon the principal to make a payment as the agent of the surety so as to take-the case, as to the latter, out, of the Statute of Limitations. This authority must determine this appeal. Assuming the jury to have found with the plaintiffs upon the facts, in the case at bar the request to Mrs. Carpenter through the payee was less explicit than was the request or direction in the case cited ; the plaintiff makes no pretense that he communicated the direction of the defendant to Mrs. Carpenter; Mrs. Carpenter swears distinctly that she was not informed of the defendant’s request. The act of Mrs. Carpenter, therefore, in making the payment in March, 1894, is not effective to renew the defendant’s liability once lost.
The respondents would sustain this judgment solely upon the authority of Winchell v. Hicks (18 N. Y. 558), upon which they state the case was submitted and decided. The facts in that case are very similar, to those in the case at bar. There, however, the liability accrued before the statute required-.that the acknowledgment, which-would save the case from the Statute of Limitations, must be in writing. The declaration of the surety was there held .to be a parol acknowledgment, sufficient to save the defendant’s .liability. It was upon that ground' that the judgment passed. In the opinion of Allen, «L, the'decision seems to be placed both upon the ground stated and also upon the ground that the ¡irincipal was made the agent of the defendant to make the payment. In this, however, ‘ the other judges did not agree. In the Littlefield Case [supra) this case is discussed and held to be no authority for a rule that a pay*353ment mS3e by a principal, although made after reference by the surety to him for such' payment, should be deemed the act of the surety.
A single difference is found between the Littlefield case and the case at bar, not pressed upon our attention by the respondents, nevertheless worthy of notice. Mrs. Emma Carpenter, who made this payment and to whom the payee was by the defendant directed, was not a principal upon the note or in any way legally liable to pay the same. I can conceive of cases in which this difference might be vital. Such a case would arise if the stranger had made a payment upon the note under such circumstances that the stranger could call upon the surety for reimbursement therefor. . In the case at bar, however, as has been indicated, there is no evidence that the payment was made by Mrs. Carpenter with a knowledge that the payee had been sent to her by the surety. But were it otherwise, and had. the payment been made by Mrs. Carpenter with knowledge of such fact, the circumstances would not be such as to imply any promise on the part of the surety to repay to her any moneys which she might pay thereupon. She was the widow of the principal upon the note for whose benefit defendant had signed. Her payment would be deemed to have been made by reason of her moral obligation to pay the debts of her husband, and not in reliance upon an implied promise of the surety to indemnify her. Her payment, under such •circumstances, could not fairly be deemed the act of the defendant.
If these conclusions be right, the appeal succeeds, and the judgment and order must be reversed.
All concurred.
Judgment and order reversed upon the law and facts and a new trial granted, with costs to the appellant to abide the event.