We think the judgment should be affirmed upon the cross-appeals, both as to the one taken by the plaintiff from the dismissal of the complaint as against the defendant Leslie C. Wead, and as to the appeal taken by the defendant Charles K. Wead from the judgment entered on the verdict directed against him. With respect to the plaintiff’s appeal nothing need be added to what has been said by Hr. Justice Patterson in affirming that part of the judgment. Concerning the appeal of Charles K. Wead the question presented is as to the sufficiency of a letter written by him to the plaintiff to take the indebtedness out of the Statute of Limitations. The letter is as follows: “ 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.”
Under section 395 of the Code of Civil Procedure, to take a case out of the operation of the Statute of Limitations, there must be “ an acknowledgment or promise contained in a writing, signed by the party to be charged thereby.” This, it will be noticed, does not require both an acknowledgment and a promise; either one is sufficient. As said by Mr. Justice Ingraham in Shaw v. Lambert (14 *498App. Div. 267): “ In dealing, with each particular ease what lias to he ascertained is the intention of the writer of the instrument, upon which, is based the acknowledgment of the existing liability or the new promise to pay the debt. Was it his intention to acknowledge that an obligation or debt existed, or was it' his intention to promise to pay a demand made upon him ? ” Applying this rule to the language of the letter, it seems to us clearly to be an acknowledgment of an indebtedness. In the letter the defendant Charles K. Wead says that the plaintiff held the note, which note, he adds, was “ endorsed by me.” And that he recognized his liability thereon and acknowledged the debt appears from what follows, wherein he says, “I am not yet able to take up the note.”
Giving the language .its necessary construction, it seems to us impossible to escape the inference .that the writer would not have employed those words had he not recognized his liability as indorser on the note and by his letter intended to- acknowledge it. We think, therefore, that the learned trial judge was right in saying, “ The letter of the defendant Charles K. Wead clearly acknowledges the debt. * * * RFot only is there nothing in the writing inconsistent with the intention of. the debtor to pay the obligation, but the language used appears to be consistent with an intention to pay.” In this construction given to -the language of the letter by the trial judge we concur, and think that the judgment as to Charles II. Wead should also be affirmed, with costs.
Rumsey, J., concurred.
Upon plaintiff’s appeal judgment affirmed, with costs. Upon defendant’s appeal judgment reversed and -new trial ordered, costs to defendant Charles K. Wead to abide event.