This is a proceeding under section ’375 of the Code, for the purpose of having the defendant Hall adjudged to be bound by a prior judgment entered in the action, after service of process upon his former partner only, who allowed judgment to be entered for want of an answer. Apparently, the statute of limitations had run against the demand before the service of process upon the partner.
The defendant Hall insists upon the statute as a bar to this proceeding.
Section 379; of the Code, by its literal reading, precludes the defense of the statute of limitations where it had arisen before the commencement of the original action, but allows it when it arises subsequently. It is suggested that a little transposition of the last five words of the section would very naturally and properly change the reading, so as to preclude the defense where it arises subsequently, and • allow it when it had arisen before the original action was commenced. Place those-words next after the word “ subsequently,” in the middle of the section, and the result suggested will be produced. The difficulty is that those words were placed just where they occur, by an amendment of the Code, in 1849, when no other change was-made in the section. It has so forcibly the appearance of design, that I am fully satisfied it would *445be in defiance of the legislative intention, to construe the section as if the words were differently placed. At the time of the amendment it had long been held that a payment, or a promise, by one member of a firm, revived the debt, and barred the statute, although the firm had been long dissolved, at the time of the payment or promise. The doctrine is distinctly recognized as existing, and is overruled in Van Keuren v. Parmlee, (2 N. Y. Rep. 523,) which was decided after the amendment of 1849 was adopted. The amendment gives the same effect to a judgment; which is in effect a confession of the debt by record evidence.
[New York General Term, April 1, 1867.Had the whole section been brought into existence at the time it was amended, I might have leaned to the suggestion that the legislature did not express their intention. But an amendment placing five words at the end of a section will not admit of their being placed in some other position by the rules of construction ; unless they lead to a greater absurdity than is here presented.
The judgment should be affirmed, with costs.
Leonard, J. C. Smith and Ingraham, Justices,]