I do not think the plaintiff should be limited to a judgment for fifty dollars only. The appeal is taken upon the judgment roll alone and upon the facts found by the learned referee I think the plaintiff is entitled to a judgment for the full amount of his claim on the ground that the sale of the hooks by the defendant’s, testator to him upon the understanding that their value should he applied upon the plaintiff’s claim had the effect of taking the whole claim out of the Statute of Limitations.
On the prior appeal to this court (138 App. Div. 587) it did not appear that anything was done toward an acceptance of the books as part payment upon a conceded indebtedness from the defendant’s testator to the plaintiff, and it was held that the *380Statute of Frauds was not satisfied and that title, to the books did not pass and, therefore, no partial payment had been made Which operated to release the claim from the Statute of Limitations.
On the present appeal we have a finding that the defendant’s testator acknowledged his indebtedness to the plaintiff and turned over the books to him with directions to apply the purchase price thereof on such indebtedness, which the -plaintiff agreed to do, and that immediately thereafter the plaintiff accepted such hooks, caused his name to be pasted thereon, and took possession and assumed ownership thereof and still continues so to do.
The Statute of Frauds is satisfied where goods which are in the possession of the buyer' are sold to him if there be some manifestation of approval and acceptance of the property in fulfillment of the contract of purchase. (Matter of Hoover, 33 Hun, 553; Dorsey v. Pike, 50 id. 534; Timoney v. Hoppock, 13 Civ. Proc. Rep. 361; Snider v. Thrall, 56 Wis. 674.)
The remarks of Bradley, J., in Matter of Hoover {supra) indicate the situation presented on the former appeal as well as that presented on the present one, where he says: “The fact that the property was in the possession of the appellant [buyer] may have obviated the necessity of any act of delivery on the part of the assignee [seller], further than a recognition and assent by him of an act of acceptance by the appellant under the agreement. But some act on the part of the latter which may be construed as an unqualified acceptance was essential to constitute a sale and purchase; That may he evidenced by an act inconsistent with any other relation than that of owner of the property, such as a pledge or sale of it, or retaining and using the property after its receipt by the buyer. There must, however, he both a receipt and acceptance by him to be effectual to vest the title, and that must he manifested by some act as distinguished from, and in addition to the words of the parties constituting the agreement.”
The decision in Follett Wool Co. v. Utica Trust & Deposit Co. (84 App. Div. 151) turned upon the proposition that there was no assent on the part of the seller that the buyer in possession should take immediate delivery of the property. The rule *381which is above stated was recognized and held to apply to the seller as well as to the buyer, and hence that there must be a meeting of minds upon acceptance of the property and that there must be an assent on the part of the seller that the buyer might accept.
In the present case the findings show an assent on the part of the seller that his co-owner of the books should take them at the agreed price, which assent was followed by an immediate acceptance and assumption of acts of ownership.
There having been, therefore, a sale of the books under an agreement that their value should be applied on an indebtedness owing by the defendant’s testator to the plaintiff his whole claim was taken out of the Statute of Limitations. A payment in order to have the effect of taking a claim out of the Statute of Limitations need not necessarily be' in money. Delivery of a note of a third person (Smith v. Ryan, 66 N. Y. 352), or of lumber (Lawrence v. Baker, 44 Hun, 582), or of a wagon (Sibley v. Lumbert, 30 Maine, 253), or of any other personal property (Rowell v. Estate of Lewis, 72 Vt. 163), with the understanding that its value shall be applied on an existing indebtedness has the effect of removing the claim from the bar of the statute. In Lawrence v. Baker (supra) Learned, P. J., says: “The giving by a debtor of a note of a third person to apply on his debt is a payment under the Statute of Limitations (Smith v. Ryan, 66 N. Y. 352; Code Civ. Pro. § 395), because it is immaterial, so far as the effect of payment goes, whether the debtor pays in cash or in chattels, or in the obligation of another. In either case he parts with something of value and transfers it to the creditor to apply on the debt. ” In Rowell v. Estate of Lewis (supra) the opinion reads: “The indebtedness of the intestate to the plaintiff was represented by two notes and the account combined, and if the coal was sold and delivered to apply in payment thereon it was the same as though the selling price thereof had been paid in money for that purpose at the time of each sale and the law made the applications at once an extinguishment of that indebtedness pro tanto.”
The facts as found and which are conclusive upon us in the absence of the evidence, show an agreed part payment by the *382transfer of the books upon a claim also found due and payable except for the bar of the statute. The part payment had the effect of taking the claim out of the-operation of the Statute of Limitations.
The facts being different I think the learned referee erroneously felt himself bound by our former decision, and I think the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Betts, J., concurred.
Judgment modified as per opinion, and as modified affirmed, with costs to appellant.