¶1I dissent from the prevailing opinion of Mr. Justice Hatch, as I do not find evidence sufficient to predicate a waiver of the condition attached to the defendant’s promise. The condition was- that when “ the New York folks pays
¶2In Lawrence v. Harrington (122 N. Y. 408, 414) the court cited with approval the opinion of the court in Allen v. Ferguson (18 Wall. 1): “ ‘Nothing is sufficient to revive a-discharged debt unless the jury are authorized by it to say that there is an expression by the debtor' of a clear intention to bind himself to the payment of the debt.’ ” -Payments on account of a lapsed debt are not sufficient to revive a debt discharged in bankruptcy. (Merriam v. Bayley, 1 Cush. 77.)
¶3I think there is a clear principle established by the authorities to hold strictly that there must be an express promise to pay a debt discharged by bankruptcy without any attached condition.
¶4I think that the evidence to establish a waiver of this condition must be equally strong with evidence to establish the original promise, and that there is no. evidence of any waiver except the fact of payments, which would not be sufficient to establish a promise to pay a debt discharged by bankruptcy.
¶5. Judgment and order affirmed, with costs.
¶6Sic.