majority">By the Court, Balcom, J.

If the Bank of "Norwich had sued the defendant upon the note, he would have had no defense to it, unless it were the statute of limitations. The bank lent the money on the note, to the maker, and received the note from him, indorsed by the defendant and another, at the time it bears date. The note was not paid when it became due, and it was protested and the defendant was duly charged as indorser. The plaintiff paid the amount *170due Upon the note, to the hank, and received the note on the 8th day of June, 1858; and he has since remained the owner and holder of the note. He succeeded to all the rights of the hank, and can enforce them in this action. These views dispose of all the defenses set up in the answer, and all the offers and rulings pertaining to them, except the defense of the statute of limitations and the offers and rulings touching the same. Whether the maker of the note obtained the money on it of the bank to use in buying hides, for the defendant and the other indorser of the note, which the defendant was to tan; or under what circumstances the note was given, or what became of a seven per cent dividend on the note which the indorser, Miller, received of the assignees of the maker of the note; or whether the defendant and the other indorser of the note were partners and they indorsed the note to raise money for their use as such, and the money obtained of the bank on the note was used by them in their business as partners, were facts wholly immaterial to the issues tried, in view of the rights of the plaintiff as holder of the note. It was not alleged in the answer, or claimed on the trial, that the seven per cent dividend which the indorser Miller received on the note from the assignees of Hughston, was paid to the plaintiff or to the bank; and no defense to the note in favor of the defendant-had arisen against the plaintiff, unless it were the statute of limitations, that did not exist against the bank; and no defense in favor of the' defendant, against the. bank, was set up in the answer, except the payment of half of the note by him, which was proved and allowed to hint in the verdict.

The statute of limitations was a defense to the action, if • the $45, which the defendant received of the assignees of the maker of the note, and paid thereon to the Bank of Norwich, on the 16th day of February, 1858, did not take the case out of the operation of such statute. The case of Pickett v. King, (34 Barb. 193,) shows that the payment which the assignees made on the note to and through the- defendant, *171to the hank, did not prevent the statute of limitations running in favor of the assignor, who was the maker of the note, from the time the note became due.

The defendant was liable to the bank, as indorser of the note, for the payment of the whole amount due thereon, at the time he received the $90 of the assignees of the maker, and paid $45 of the same to the bank. If the bank had obtained that money on the note of the assignees of the maker, at the request of the defendant, the note would have been taken out of the operation of the statute of limitations, according to the decision of the Court of Appeals in Winchell v. Hicks, (18 N. Y. Rep. 558,) which we are not at liberty to question. And when the defendant received the $90, and kept half of the same and paid the other half on the note to the bank, he must be deemed to have requested the assignees to pay him the $90, and be held to have been more than a mere agent of the assignees in dividing such money and pay-3 ing one half of it oh the note to the bank. He was more of a principal than an agent, for he acted for his own benefit, and when he paid the $45 to the bank, he reduced his lia-3 bility on the note that amount.

The views of Mr. Justice Morgan in Munro v. Potter, (34 Barb. 358,) show that the payment by the defendant of the $45, on the note, binds Mm as effectually) against the running of the statute of limitations, as it would if he had borrowed that money of a disinterested tMrd person. (See Hawley v. Griswold, 42 Barb. 18.)

We should deem it our duty to examine the opinion of Justice Morgan in Munro v. Potter, (supra,)and express our views respecting it, were it not so near of kin in principle to the decision of the Court of Appeals in Winchell v. Hicks, (supra.)The principle established in the latter case sustains the views of Justice Morgan, and we feel bound to acquiesce in his opinion.

It follows that the defendant’s motion for a nonsuit, on the *172ground that the statute of limitations was a har to the action, was properly denied by the judge at the circuit.

[Bboomb-) Gbhebai, Teem,January 23, 1866.

The defendant’s counsel insisted, at the trial, that the judge should submit the question to the jury, whether there was a new promise by the defendant to pay the note, arising from his payment of the $45, on it, in connection with the attending circumstances. But the judge refused so to do, and the defendant’s counsel excepted to the refusal. The defendant’s counsel now claims that the judge erred in refusing to submit this question to the jury; and he relies upon. Bloodgood v. Bruen, (4 Seld. 362,) Shoemaker v. Benedict, (1 Kern. 176,) and Pickett v. King, (supra,) to sustain his position.

The law respecting the effect of a payment on a question as to taking a case out of the operation of the statute of limitations, has not been changed by the Code. (Oode, § 110.) And the language of the authorities cited is that a payment, which will take a case out of the operation of this statute, must be made under circumstances to warrant a finding, as a question of fact, that the debtor intended to recognize the debt in. question as subsisting, and which he was willing to pay. (Also see 5 Bosworth’s Rep. 226.)

There was no conflict in the evidence in the case," and we think the defendant paid the $45 on the note within six years next before the time of the commencement of the action, under circumstances that warranted the judge in holding that he then intended to recognize his liability to pay the entire note, and which he was willing to pay.

Our conclusion is that no error was committed on the trial to the prejudice of the defendant, and that his motion for a new trial should be denied, with costs.

Ordered accordingly.

Farlcer, Mason and Halcom, Justices.]

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