the slanders in the other. We think that case is decisive of this. If that case is not quite in harmony with Rowe v. Smith, 45 N. Y. 230, the later decision should be followed. We think the objection was sufficiently stated in the answer to allow defendant to avail herself of it upon the trial. The plaintiff urges that the fact that a committee has been appointed for the husband, and that this defendant is such committee, takes this case out of the rule as now settled by the court of appeals. We think not. It is remarked in the opinion in that case that it is not of very great importance how the question is decided; and it is not worth while to begin to make exceptions to a plain rule. We may say, further, that there is little, if any, evidence of viciousness in the dog prior to the accident. Two girls were passing along the highway. The dog ran out and barked, and ran towards them, but did nothing. They were frightened. So they might have been at a mouse, but it would not follow that the mouse was vicious. The dog grabbed a coat hanging down from a man's shoulder. The dog was tied in a wood-shed, and jumped for Mrs. Genenz's shoulder when she went in. Reynolds, who worked for the defendant, and who brought the dog to defendant's house, kept him chained. This is substantially all the proof of viciousness; and it shows little but the playfulness of a puppy, which the animal was. There was hardly the scintilla of evidence spoken of in Dwight v. Insurance Co., 103 N. Y. 358, 8 N. E. Rep. 654. Judgment affirmed, with costs. LANDON and INGALLS, JJ., concur. COLLINS v. FAIRCHILD. (Supreme Court, General Term, Third Department. July 2, 1888.) HUSBAND AND WIFE-LIABILITY OF WIFE-AGENCY OF HUSBAND. Defendant's husband ordered lumber of plaintiff, which, with the knowledge of his wife, he used to build a barn on her property, stating to plaintiff that he was acting for his wife. No similar purchases had been made by the husband, and no special authority to act as defendant's agent was shown. Held, that the declarations of the husband, and the fact that the lumber was used to improve defendant's property, were insufficient to make her liable. Appeal from Fulton county court. Oliver C. Collins sued Maria Fairchild for the price of certain lumber. Judgment for defendant, and plaintiff appeals. Argued before LEARNED, P. J., and LANDON and INGALLS, JJ. INGALLS, J. Upon the trial of this action in the county court the complaint was dismissed. The action was brought by the plaintiff to recover of the defendant the price of lumber which was furnished by the plaintiff upon the request of Lyman Fairchild, the husband of the defendant, and which was used in the construction of a barn upon the land of the defendant. The defendant resided with her husband upon the premises, and saw the lumber used in the building, and made no objection thereto. Lyman Fairchild was in the plaintiff's employment when the lumber was furnished, and had been for two years previous thereto, and had purchased groceries and other provisions of the plaintiff, which was applied upon his work. On one occasion he requested the plaintiff to sign, as surety, a note to raise money to be applied towards the payment for the land which the defendant had purchased. When a portion of the lumber was furnished, Lyman Fairchild told the plaintiff that the defendant was to receive money from her father's estate in April, and that the lumber would then be paid for, and the note would also then bo paid. The plaintiff testified that Mr. Fairchild told him, at the time he ordered the lumber, that he was acting for his wife; and that he wanted the lumber for his wife, to put up a barn upon the lot. The plaintiff further testified that, up to the time of the sale of the lumber, he had never heard the defendant's husband say that he was her authorized agent; that he never asked the defendant to pay for the lumber, and that he had not seen her previous to the time the parties appeared before the justice of the peace to try the action; that he had several times applied to Mr. Fairchild to pay for the lumber. We are unable to find in this case sufficient evidence from which to infer authority from the defendant to her husband to pledge her credit for the lumber in question. It is very clear that he was not made her general agent, and no special authority was established by which she became liable to the plaintiff. No similar purchase was shown to have been made by the husband, by the direction of the defendant. The mere request of the husband to the plaintiff to sign the note as surety amounts to but very little in support of such pretended agency, even though such request had been made by her direction. The declarations of the husband could not have the effect to bind his wife, unless the authority to make the same were established. The fact that the lumber was used to improve her separate estate was, standing alone, insufficient to make her liable. It is quite probable that the husband desired the barn for his own convenience, and undertook to build the same upon her land, and that she was quite willing that it should be done. The case does not show that the defendant was informed of whom the lumber was procured by her husband previous to the commencement of the action. There is a clear failure of proof to establish an agency, or any authority in the husband to pledge the credit of the defendant for such lumber. The defendant created no charge upon her separate estate, nor did she render herself personally liable to the plaintiff. The plaintiff should have secured her order for the lumber in case he intended to furnish it upon her responsibility. He took the risk in trusting to the representations of the husband without in any manner conferring with the defendant, with whom he had had no dealings, and who was a stranger to him; and he must bear the consequences of such omission to take a reasonable and proper precaution. Doubtless, the plaintiff conferred an act of kindness, and it is to be regretted that he should be a looser thereby; but the court cannot bend the law to meet every seeming hardship. The decision of the county court was correct. Jones v. Walker, 63 N. Y. 612; Sanford v. Pollock, 105 N. Y. 450, 11 N. E. Rep. 836; Chamberlain v. Taylor, 11 N. E. Rep. 630. The judgment must be affirmed, with costs. LEARNED, P. J., and LANDON, J., concur. WALKER 0. WILSON. (Supreme Court, General Term, Third Department. July 2, 1888.) MASTER AND Servant-Negligence of SERVANT-PROOF OF RELATION. In an action for personal injuries, it appeared that, while plaintiff was driving along a road in front of defendant's house, his cart was upset by striking some frozen "chunks" of shavings removed from defendant's house, where they had been used as banking, and placed in the street by defendant's son, whereby plaintiff was injured. A day or two before the accident, defendant was notified that the "chunks" might be dangerous, and replied that they would soon thaw out, when he would scatter them. Defendant's son had at one time engaged a workman to repair defendant's house, for which defendant paid, and on the occasion the son had carried mortar and brick; but there was no evidence that he was a servant of defendant. It was not shown that defendant told his son to remove the banking, or saw him doing it, or knew where the "chunks" came from when he spoke of their thawing out, or that there was not similar banking around neighboring houses. Held, that plaintiff was properly nonsuited. Appeal from circuit court. Action for personal injuries brought by Moses Walker against William C. Wilson. Judgment for defendant, and plaintiff appeals. Argued before LEARNED, P. J., and LANDON and INGALLS, JJ. LEARNED, P. J. In April, 1885, the plaintiff, in the evening, drove, with his horse and cart, up a somewhat steep road in front of the house where defendant lived. One of the wheels struck some "chunks" of what he calls "banking," or frozen shavings, and the cart was upset, and he was injured. He brought this action against the defendant, and on the trial was nonsuited, principally, it would seem, on the ground that the defendant was not responsible for this obstruction in the road. The facts, so far as they are material, are as follows: The defendant's son, Ira, lived with his father. A short time before the accident happened, Ira one day removed the banking from around defendant's house, and wheeled it into the road. It was frozen, and in "chunks" 13 to 20 inches thick. A day or two before the accident, a person passing said to defendant that those things might be dangerous there; to which defendant replied: "They will thaw out in a few days, and we will scatter them about." It is proved that on one occasion Ira went to a workman, and engaged him to do some repairing on this house where defendant lived, for which defendant paid. On that occasion, Ira carried the brick and mortar. So, perhaps, the testimony means, though it is doubtful. It is in these words: "Did Mr. Wilson inform you who would carry your mortar and brick? No, sir; he didn't say anything. Who did? Ira." There is no evidence as to the age of Ira. The fact that Ira, on the occasion mentioned, went for a workman to do repairs on the house where defendant lived, shows only that he was a messenger at that time. It would hardly show that Ira was in the defendant's employment as a servant. And, if Ira carried the bricks and mortar, that may have been a merely voluntary act, or the workman may have paid him. Defendant did not tell the workman that Ira would do so. It is not in evidence that defendant told Ira to remove the banking, or that he saw him doing it, or knew anything about it. The casual remark that the things would thaw out in a few days, and that they would scatter them, is consistent with defendant's ignorance of the place where the frozen shavings or "chunks" came from. It would be a natural remark in regard to any frozen lumps lying in the street, whether they came from defendant's house or elsewhere; and hence the remark does not show that defendant knew that Ira had wheeled these frozen shavings out, and had put them in the street. The witness who made the remark says that he does not know where this banking (that is, the frozen shavings) came from; and, if defendant expressed a willingness to scatter the shavings about when they were thawed out, that does not show that he had caused them to be put there, or knew whence they came. One may be responsible for the acts of a servant in the line of his employment; but there must be proof showing that the person who did the act was the servant of the person charged. The plaintiff says that this action is not based on defendant's negligence, but on his wrongful act. Then it should not be left to the jury to guess that the defendant must have told Ira to remove the banking, or to guess that defendant must have seen and known of the placing the banking in the street, and must have known that it came from his house. There appears to have been a house on each side of defendant's. It does not appear that there was not similar banking around those houses. There was no proof of anything done by Ira, prior to the removing of the banking, which tended to show that he was a servant of the defendant, for whose acts defendant would be liable; and it is not shown that that removal was by defendant's direction. We think the judgment should be affirmed, with costs. LANDON and INGALLS, JJ., concur. MILLER v. Magee. (Supreme Court, General Term, Third Department. July 2, 1888.) 1. POWERS-NOTE EXECUTED UNDER-PAYMENT TO BAR LIMITATION. A power of attorney given in 1869, authorizing the making and giving of a promissory note, does not authorize a payment of one dollar on the note in 1881, to bar the running of the statute of limitations. 2. LIMITATION OF ACTIONS-PART PAYMENT-AUTHORITY TO MAKE. A letter, in 1878, referring to certain payments which should have been made by a third person on defendant's note, does not prove t t the third person was authorized, in 1881, to make a payment to revive defendant's liability on the note. 3. SAME ACKNOWLEDGMENT-LIFE INSURANCE POLICY, TO SECURE. Defendant, in 1866, assigned plaintiff a life insurance policy to secure his notes held by plaintiff, and regularly thereafter paid the premiums, sending the receipts to plaintiff annually. Held that, as the giving the security was a renewal of the debt for six years from the time it was given, the delivery of the renewal certificates had the same effect, and was an unequivocal acknowledgment of the debt, and promise to pay it.1 4. PLEDGE-LIFE INSURANCE POLICY-SALE. Where a policy of life insurance is assigned to a holder of a note for security, he cannot sell the same, but can reimburse himself, when it becomes due, for whatever balance may be unpaid on the note. Appeal from circuit court, Albany county; EDWARDS, Justice. Martin M. Miller sued Irving Magee on three promissory notes. The case was heard by the court without a jury, and the following opinion rendered: "EDWARDS, J. This action is brought on three promissory notes: one made by Abram Magee, Arthur Magee, and Irving Magee, dated April 1, 1869, payable, one year after date, to M. M. Miller, or bearer, for $1,200, with interest; one made by Abram Magee and Irving Magee, dated January 11, 1866, payable, one year after date, to Martin M. Miller, or bearer, for $1,000, with interest; the other made by Silvernail & Magee, Adam Silvernail and William E. Magee, dated February 14, 1867, payable on April 1, 1868, to Martin M. Miller, or bearer, for $1,700, with interest. On the last-named note the defendant was not originally liable as maker, or otherwise; and, having never since promised in writing to pay it, it is clear that he cannot be personally charged with its payment. As to whether or not the plaintiff can hold the life insurance policy hereinafter mentioned as security for the payment of this note, it is not necessary now to decide. The interest on the other two notes was regularly paid by Abram Magee, one of the makers, to April 1, 1876, and he also paid one dollar of principal on each of them on July 9, 1881. More than six years having elapsed between the maturity of each of these notes and the commencement of the action, on March 17, 1887, the defense of the statute of limitations, interposed in the answer of the defendant, will defeat the plaintiff's recovery, unless the defendant has done something which will arrest the operation of that statute. The plaintiff contends that, in making the payment of one dollar on each note, the only payment which could save it from the statute, Abram was the agent of the defendant. But there is no evidence of such agency. It is well settled that agency cannot be implied from their relation to the note. It must be established as a fact by plain and clear proof. The plaintiff's evidence of the agency of Abram to make these payments for defendant are Exhibits D and G. The former is a power of attorney by defendant to Abram, dated March 23, 1869, authorizing him to make and give a promissory note. Its effect must be limited to the special purpose for which it was given. It is impossible to spell out any authority in this to make the dollar payments of July 9, 1881. Exhibit Ġ is a 'As to what is a sufficient acknowledgment or new promise to stop the running of the statute of limitations, see Pracht v. McNee, (Kan.) 18 Pac. Rep. 925, and note. See as to the sale of a pledge by the pledgee, Downer v. Whittier, (Mass.) 11 N. E. Rep. 585, and note. letter from defendant to plaintiff, dated January 11, 1878, and the only part of it referring to any payments by Abram on the notes is as follows: I have before told you that I directed him [Abram] to use what was due me in father's estate for paying the notes that had my name to them, which he did not do. I do not know whose fault it is. It surely isn't mine. But that can't be changed now.' This clearly refers to some payments which were to have been made in the past, and not to any payment of one dollar to be made two and a half years thereafter for the purpose of reviving liabilities on the notes. It does not prove that this particular payment was authorized by defendant. A payment which is to operate as an acknowledgment must be made by the debtor or his authorized agent; that is, an agent having authority to make a new promise, or to perform for the party the very act which is to be the evidence of a new promise.' Littlefield v. Littlefield, 91 N. Y. 203. In respect to this letter of January 11, 1878, and also defendant's letter of May 25, 1880, to the plaintiff, it is sufficient to say that, assuming them to contain such admissions of defendant's indebtedness on the notes that a willingness or promise to pay may be fairly implied, as is claimed by plaintiff's counsel, more than six years thereafter elapsed before the commencement of the action, and such promise is therefore of no avail. The claim that defendant's expressions of opinion in his letter of May 25, 1880, in respect to the legal effect of his acts on the statute of limitations, estop him from interposing the statute, is clearly untenable. "Another question in the case relates to the effect of the assignment of the life insurance policy. By an instrument in writing dated September 21, 1869, the defendant assigned to the plaintiff a policy issued by the Connecticut Mutual Life Insurance Company, dated April 27, 1866, on the life of defendant, whereby, in consideration of the annual premiums to be paid, the company agreed to pay $2,500 to the personal representatives or assigns of the defendant 90 days after proof of his death. Although the language of this assignment is somewhat obscure, I think, when read in the light of the evidence, the policy was assigned as further security to the notes in suit. The premiums on this policy have been regularly paid by the defendant to the present time, and these renewal receipts therefor, down to and including the one for 1885, 16 in number, have been annually sent by the defendant to the plaintiff, to whom the policy also was delivered by the defendant at the time of the assignment. I think this is such an acknowledgment of defendant's indebtedness to plaintiff on the first two named notes as will save them from the operation of the statutes. Originally, any admission of a debt which implied a willingness or promise to pay it revived the debt. To close the door against frequent perjury in such cases, a statute was enacted requiring that the acknowledgment or promise to continue or revive a debt should be in writing, but this statute, of which section 395 of the Code is a substantial re-enactment, especially provided that it should not alter the effect of a payment of principal or interest. The reason for this exception in respect to a payment is that payment of a part of a debt is such an unequivocal acknowledgment of the debt, and promise to pay the remainder, that it is not subject to the misconstruction of mere words prolific of the perjury which the statute was designed to prevent. The payment is an acknowledgment, or new promise, supported by the original consideration, which revives the debt from the time of such payment. The effect of a part payment to renew the debt results solely from the decisions of the courts, and depends wholly upon the reasons of those decisions. Harper v. Fairley, 53 N. Y. 444. The delivery by a debtor to a creditor of the note, bill, or other obligations of a third person as collateral security is as much of an acknowledgment as a payment is, and is equally effectual to suspend the operation of the statute of limitations. Smith v. Ryan, 7 Jones & S. 489, affirmed 66 N. Y. 352; Harper v. Fairley, 53 N. Y. 442; Acker v. Acker, 81 N. Y. 143. The reason is that the act is of the ་ |