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Opinion of the Court, per PECKHAM, J.

pose a plain mistake were made by a copying clerk in the amount, either assessed or awarded, of a very large sum, and thus, inadvertently, it had been confirmed, is there no relief? Suppose there was gross connivance and corruption between the commissioners, some of the parties interested and the acting officers of the city, to the great injury of the city or of property owners and the report is confirmed, is there no relief? In most cases of fraud, mistake or irregularity, an appeal would afford no relief, as the defect might not, and probably would not, appear upon the return to the appeal.

There is no statute prohibiting the making of a motion for relief in such a case. It is generally the only remedy where other facts than the record presents are required to show the ground for relief. It is a conceded power of the court to hear such motions in ordinary cases of judgments or orders in suits there pending, and no reason is perceived why the court does not possess and should not exercise the like power in cases of this character.

The provision in the statute, that the report when confirmed shall be “final and conclusive,” has reference to an appeal therefrom, not to the remedy by motion to set it aside for irregularity, fraud or mistake. That provision was aiming at a regular confirmation of a report free from material fraud or mistake. It plainly never intended to give a vested interest in a mistake, an irregularity or a fraud, whereby important rights of property were acquired or lost. It had reference simply to an appeal upon the merits, and is satisfied with that. All judgments are liable to be set aside for fraud, mistake or irregularity; and a vested interest therein is subject to that liability.

Whether the legislature had power to pass this act for the purpose of vacating this order of confirmation I do not propose to discuss, as I do not place the authority upon this statute to interfere with that order.

There are various and appropriate provisions in this statute of 1871, to take effect in case the order of confirmation should be set aside.

Statement of case.

No point is made here as to the sufficiency of the grounds for the action of the court in setting this order aside if it had the power. There was irregularity and fraud enough to justify the action of the court upon either ground. Gross injustice was the consequence of either. The order appealed from should be affirmed with costs.

All concur; RAPALLO, J., not sitting.
Order affirmed.

THE FIRST NATIONAL BANK OF UTICA, Respondent, v. THEO

DORE P. Ballou, impleaded, etc., Appellant.

49 155 113 246 113 247

The requirement of section 110 of the Code, that an acknowledgment or
new promise to take a case out of the operation of the statute ot limita-
tions must be in writing, does not alter the effect of a payment of prin-
cipal or interest. Nor does it prescribe any new rule of evidence as to
the fact of such payment; and it may be proved by oral admissions of
the debtor. Such payment may be made by an agent, and the authority
of the agent may be proved by parol evidence.
Where a payment of interest is made upon a promissory note by the maker

in the name of and as agent for an accommodation indorser, a subse-
quent recognition and approval of the act by the indorser, with full
knowledge of the facts, is, as regards the statute of limitations, equally
binding upon him as a payment made by himself. It is immaterial whose
money is used in making the payment.

(Argued April 1st, 1872 ; decided April 9th, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the fifth judicial district in favor of plaintiff, entered upon a verdict.

The action was brought to recover the amount of three promissory notes made by defendant, Shearman, and indorsed by defendant, Ballou, for the accommodation of Shearman. Ballou alone appeared in the action and pleaded the statute of limitations. Three payments of interest were made upon the note by Shearman within six years of the commencement of the action. He received a receipt stating, in substance, that plaintiff received the payment from Ballou by the hand of

Statement of case.

Shearman. A copy of the receipt, with statement annexed, was shown to Ballou by the cashier, who informed Ballou that he had given the receipt. Ballou examined them and pronounced them all right.

The court charged the jury, in substance, that if Ballou paid the interest himself within six years, or if he ratified the act of Shearman, the maker of the note, who assumed to pay it for him, such ratification being with full knowledge of the facts, then that plaintiff was entitled to recover.

The jury rendered a verdict in favor of the plaintiff for the amount of the notes.

Case and exceptions were ordered to be heard at first instance at General Term.

Francis Kernan for the appellant. The contract of the maker and indorser were different, and the causes of action reversed. (Story on Prom. Notes, SS 135, 198; Seabury v. Hungerford, 2 Hill, 80, 82.) Ballou's defence is not impåired by payments made by Shearman, and no acknowledgment of Ballou will take the case out of the statute, unless in writing signed by him. (Code, $ 10; Shoemaker v. Benedict, 11 N. Y., 176; Payne v. Slate, 39 Barb., 634.) The burden was upon the plaintiff to establish, affirmatively, the fact relied upon to take the case out of the operation of the statute. (Clarke v. Dutcher, 9 Cow., 674; Stafford v. Bryan, 3 Wend., 532; Purdy v. Austin, 3 id., 187; Code, § 110; Rosevelt v. Mack, 6 J. Ch., 266.)

A. S. Johnson for the respondent. An oral admission by Ballou that he had made a payment on the note within six years, would take the note, as against him, out of the statute of limitations. (Code, s 110; Williams v. Gridley, 9 Metcalf, 482, 485; Sipley v. Lumbert, 30 Maine (17 Shepley), 253; Angell on Limitations, S 244; Read v. Hurst, 7 Wend., 408; Sibley v. Phelps, 6 Cushing, 172.) A subsequent ratification of a principal of a previous unauthorized act of an assumed agent, is equivalent to a prior authority. (Com.

Opinion of the Court, per RAPALLO, J.

Bank of Buffalo v. Warren, 15 N. Y., 579, 580, 582; Brisbane v. Adams, 3 id., 129 [last of page 131]; Lawrence v. Taylor, 5 Hill, 137; Story on Agency, SS 244, 242, 252; McLean v. Dunn, 4 Bingham, 722; Davis v. Shields, 24 Wend., 325.) The principal cannot adopt part of the act of his agent and reject the rest. (1 Comstock, 433; 6 Selden, 335.) The transaction between Ballou and the cashier was a sufficient recognition of the agency of Shearman to take the case out of the statute. (Winchell v. Bowman, 21 Barb., 448; Winchell v. Hicks, 18 N. Y., 558; Munro v. Potter, 34 Barb., 358; Hawley v. Griswold, 42 id., 18; Millor v. Talcott, 46 id., 168.)

RAPALLO, J. The fact relied upon by the respondent to take this case out of the operation of the statute of limitations is a payment by the defendant of interest on the notes in suit, made on the 26th of July, 1859, which was less than six years before the commencement of the action.

Section 110 of the Code, which requires that an acknowledgment or new promise should be in writing, does not alter the effect of a payment of principal or interest. Nor does it prescribe any new rule of evidence as to the fact of such a payment. (Cleave v. Jones, 4 Eng. Law and Eq., 514; Williams v. Gridley, 9 Metc., 485; Sibley v. Lambert, 30 Maine, 253.)

All of the cases were decided upon statutes conforming substantially to section 110 of the Code.

That enactment may, therefore, be laid out of view in the present case.

The payment was shown to have been made to the plaintiff by Shearman, the maker of the notes, in the name and behalf of the defendant, Ballou, taking a receipt at the time as for money paid by the defendant by the hand of Shearman.

It is not disputed that a payment made by an authorized agent would be effectual to take a case out of the statute. And it is equally clear that Shearman, though the principal debtor on the notes, might act as such agent. If authorized

Opinion of the Court, per RAPALLO, J.

by the defendant, it was his act, and an unequivocal recognition by him of the existence of the debt. It is only by reason of their effect as such a recognition that partial payments are available in cases of this description. (Shoemaker v. Benedict, 11 N. Y., 185, 189.)

The only question in controversy here is, whether the authority of Shearman to bind the defendant was established. An express ratification is relied on for this purpose. Unless there is some reason why a transaction of this description should be an exception to the general rule, that a subsequent ratification is equivalent to a previous authority, it is impossible to say that the confirmation by the defendant of Shearman's act, with full knowledge of what he had done, did not render it binding upon him.

There is nothing in the authorities cited tending to show that this case is an exception to the general rule. Notwithstanding the statutory requirement that acknowledgments and new promises be in writing, a part payment may be prored by the oral admission of the party. (4 Eng. L. and Eq., 514 ; 9 Metc., 485; 30 Maine, 253. See, also, Read v. Hurd, 7 Wend., 408; Sibley v. Phelps, 6 Cush., 172.) There is no reason why the authority of an agent who has made a payment may not be proved in a like manner. Yet in neither of these cases is the evidence so satisfactory and conclusive as where, as in this case, with a full written statement before him of what has been done, showing on its face that it was done in his name, the party sought to be charged expressly approves the act. He does not merely admit that the party who acted in his name had authority to do so, but he confirms and adopts the act done and makes it his own, whether previously authorized or not, thus entitling himself to all the benefits, and assuming all the burdens resulting from it.

I am unable to discover any reason why the ordinary consequences of a ratification should not ensue in this case. The payment of the interest was actually made; and the adoption of this payment by the debtor, as a payment made by him

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