Frazier v. Stewart , 91 N.Y. Sup. Ct. 351 ( 1895 )

PRATT, J.

This is an appeal from a judgment entered upon a verdict of a jury for the sum of §1,043.43. The weight of evidence was decidedly with the defendants that the statute of limitations had run against the whole claim except the sum of 584. The only material question upon this point related to two payments made by the defendants within six years previous to the bringing of the suit, and the plaintiff concedes that, if those payments were not made on the general account, then the statute has barred all except the sum of §84. The claim of defendants was that these two payments—one of §22, and the other of §17—were made upon and for two specific items. This was sworn to positively by the paymaster of the defendants, and the circumstances attending the payment are not rebutted by any witness for the plaintiff. In fact, I think the evidence of the defendants’ paymaster is corroborated by the books of the plaintiff, as in the books of plaintiff two items are charged for these same amounts on the date just prior to the payments, and right opposite is a credit of cash. The payments were for the exact amount of the items. The bookkeeper of plaintiff, who received the payments, admitted that the paymaster said something, but could not remember what; while the paymaster testifies that he said that the payments were made upon the two items of credit which were for the precise amount and had recently accrued. Under all the circumstances, we think the judgment should be reduced to the sum of §84, and judgment rendered for §84. If the plaintiff shall stipulate to reduce the judgment to that amount, then he may have judgment for that amount and costs; otherwise, a new trial is granted. All concur.