The plaintiff sues upon the following instrument:
“ $2,000.00
“ April 1, 1916.
“ On demand I promise to pay I. U. Scott Two thousand dollars ($2,000.00) for value received with interest at 5J per cent.
“ HARRIET P. SCOTT.”
The instrument was signed on the back by the defendant, H. A. Palmer. He sets up the Statute of Limitations. (Civ. Prac. Act, § 48.) The action was commenced February 25, 1935. Six years prior thereto would be February 25, 1929. The real question here is whether a payment made June 13, 1929, by the defendant, but with moneys belonging to Harriet P. Scott’s estate, stopped the running of the statute as to the defendant.
The relationship of the parties is helpful in understanding and determining the issue. Harriet P. Scott was a sister of the defendant Henry A. Palmer. Her husband, Giles Scott, is a brother of *380the plaintiff, Irving U. Scott. In 1916 Harriet P. Scott and the defendant owned a farm known as the Palmer farm, which came to them from their father, William W. Palmer. The defendant had been the administrator of his father’s estate. He continued to operate the farm for himself and Mrs. Scott and continued a bank account in the name of the estate.
Harriet P. Scott and her husband, Giles, occupied a farm referred to as the Scott farm formerly owned by the grandfather of Giles and the plaintiff, Irving U. Scott. Giles Scott and his wife contemplated the purchase of the interests of the other heirs, including the plaintiff, Irving U. Scott, in the Scott farm. To effectuate this purchase, Mrs. Scott borrowed from the plaintiff $2,000 represented by the above note. She died December 31, 1918. Her husband and children continued in possession of the Scott farm. No administrator of her estate was appointed.
Being non-negotiable, the defendant did not, by signing the note on the back become an indorser of the note but he became liable as a maker or guarantor. (McMullen v. Rafferty, 89 N. Y. 456.)
■A payment to toll the running of the Statute of "Limitations must be made under circumstances amounting to an absolute and unqualified acknowledgment by the debtor, so that a promise to pay the balance may be inferred, and indicate an intent that it shall be so taken by the creditor. (Brooklyn Bank v. Barnaby, 197 N. Y. 210.)
A payment upon a note made by an agent tolls the statute against the principal but not the agent. (Miller v. Talcott, 54 N. Y. 114.)
The evidence supports the conclusion reached by the trial judge. The judgment should be affirmed.
Rhodes, Crapser and Bliss, JJ., concur; Hill, P. J., dissents in a memorandum, in which Heffernan, J., concurs.