(dissenting):
The note for $300 was given more than six years before the action was commenced, but it was paid within the six years. The giving of the note was an acknowledgment as of the date when given. The statute (Code Civil Pro., § 395), provides that “ 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 a case out of the operation of this title.” "What we need, therefore, is “ a new or continuing contract.” The original one is too old tó be valid. If we have a new one we can see whether that is not recent enough, and we can only determine that by ascertaining the date it was made. Such seems to be the tendency of the decisions in this State. (Kincaid v. Archibald, 73 N. Y., 189; Smith v. Ryan, 66 id. 352; McCahiil v. Mehrbach, 37 Hun, 504; Chace v. Higgins, 1 T. & C., 229.)
The giving of the note postponed the statute of limitations, upon the amount stated in the note, but it did not, unless paid, postpone it upon the residue of the indebtedness. This was held in Smith v. Ryan (supra), in a case in which the debtor gave the note, yet to become due, of a third person.
Gowan v. Forster (3 B. & Ad., 507) was the case of a draft drawn by the debtor upon his consignees in favor of his creditor and delivered to the latter. Turney v. Dodwell (3 E. & B., 136) was a similar case. It was held in these cases that the acknowledgment was of the date of the drafts and not of the day of payment. Both cases are cited with approval in Smith v. Ryan. Irving v. Veitch (3 M. & W., 90) was to the same effect.
Was the payment by the defendant at maturity of the note of $300 to the bank a payment of money upon the whole debt to the plaintiff ? If so, then it was a recognition of the residue of the debt not embraced in the note, and the statute would begin to run from the date of the payment. The cases last above cited are to *587the effect that when the debtor gives in' part payment a note or draft of a third person payable at a fatare day, the payment thereof by the third person is not the payment of the debtor, and, therefore, does not affect him. The reasoning of the cases seems to proceed upon the theory that if the payment can be traced to the original debtor, he may be regarded as paying upon the original obligation. (See, also, Harper v. Fairley, 53 N. Y., 442; Fowler v. Clearwater, 35 Barb., 143.)
The note was given as a conditional part payment of the entire demand. By it the defendant may be considered as promising to pay three months afterwards $300 upon the entire claim. He paid no less to the plaintiff, because the plaintiff had indorsed the note and transferred it to the bank. Payment to the bank was practically payment to plaintiff. It satisfied his liability upon his indorsement.
We think a new trial should be granted, costs to abide event.
Judgment affirmed with costs.