This action is upon a promissory note to recover (against indorsers) a balance claimed to be due on it, payments having been made on account, the last, apparently, in January, 1893. The defendants in their joint answer plead the six years’ Statute of Limitations. The. note bears date October 11,1889, and is payable four months after-date. The action was not begun until April, 1900. On the trial it appeared that the defendant Leslie C. Wead resided in the State of New York prior to February, 1890, in which month' he took up his residence in the State of Massachusetts, but he had not been continuously absent from the State of New York for a period of one year. The complaint was dismissed as to the defendant Leslie C. Wead, and the plaintiff appeals from the part of the judgment directing such dismissal.
It is conceded that, before the amendment of 1888 of section 401 of the Code of Civil Procedure, the abandonment by Leslie C. Wead' of his residence in the State of New York, and his taking up a. residence in another State, would have suspended the operation of" the Statute of Limitations; but by the amendment of the section, of the Code referred to, it is provided that if after a. cause of action has accrued against a person he departs from and resides, without the State, and remains continuously absent therefrom for the space of one year or more, the time of his absence is not to be counted as part of the time limited for the commencement of the: action. The effect of this amendment was considered in Costello v. Downer (19 App. Div. 434), in which, following Hart v. Kip (148 N. Y. 306), it is held that both non-residence and continuous absence, for a year must concur in order to stop the running of the statute.. *495In the case at bar it was shown that the defendant Leslie C. Wead was not continuously absent from the State of New York for the space of one year, but that from the time the cause of action accrued down to the year 1900 he was within the State at his former place of residence at frequent intervals, the dates and times being given in the evidence in a detailed statement. This case differs from Costello v. Downer (supra), in that there the defendant, although residing in New Jersey, came to the State of New York and attended to his business in this State every day, but the amendment evidently could not have been intended to apply only to such a case, and the defendant having shown his frequent returns to and sojourning within the State of New York during each year that elapsed since the cause of action accrued, it must be held that the statute operates to bar the claim against him. The judgment must, therefore, be affirmed as to him.
The defendant Charles K. Wead appeals from that part of the judgment which directs that the plaintiff recover of him the sum of $1,581.91, together with the costs of the action. On his appeal the only question is as to the sufficiency of a letter written by him to take the case out of the Statute of Limitations. That letter is dated December 27, 1897, and is in the following words:
“ Conn„ Trust & S. D. Co., Hartford, Conn.,
“ Mr. M. H. Whaples, Pt.:
“ Dear Sir.'— Several years ago when The Hartford Dynamic Co. went into insolvency you held a partly paid note of the Co. endorsed by me & L. C. Wead. I am not yet able to take up the note and have no definite prospect of being able to do so for a long time to come; but if you are disposed to name some small sum that you will take for the note I shall be glad, if I can do so in justice of other interests, to buy it.
“ Very truly yours,
“ CHARLES K. WEAD.”
As remarked by Andrews, J., in Manchester v. Braedner (107 N. Y. 349): "The decisions as to what is a sufficient acknowledgment of a debt to take it out of the statute are very numerous and not altogether harmonious. It seems to be the general doctrine that the writing in order to constitute an acknowledgment must *496recognize an existing debt, and that it should contain nothing inconsistent with an intention on the part of the debtor to pay it.” 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 the case out of the operation of the Statute of Limitations. (Code Civ. Proc. § 395.)
There is no promise contained in the letter above quoted, nor is there an acknowledgment of an indebtedness or liability upon the note. It contains simply a reference to a partly paid note held by the plaintiff, bearing the writer’s indorsement, and states that he was not able to take it up and had no prospect of being able to do so, and then follows an offer to buy the note if the holder were disposed to sell it at a small sum. There is nothing in the letter that can be construed as an acknowledgment of a then existing obligation on the part of the writer to pay the note. We think it cannot be said of this letter that it contains such an acknowledgment of a subsisting debt that a promise to pay may fairly be implied from that acknowledgment. It only refers to a piece of commercial paper held as evidence of a past indebtedness which the writer of the letter not only does not promise to pay, but declares his inability to pay. All that is recognized is the existence of a piece of commercial paper referred to by words of description. There is no indebtedness upon it acknowledged.
The judgment ’ upon the plaintiff’s appeal must be affirmed, with costs, and upon the appeal of the defendant Charles K. Wead the judgment should be reversed and a new trial ordered, with costs to the defendant Charles K. Wead to abide the' event.
"Van Brunt, P. J., concurred; O’Brien- and Rumsey, JJ., dissented.