At the trial, the defendant said that he would rely solely upon the statute of limitations of the state of Iowa for his defense. In his answer he had pleaded a discharge from liability under section 390 of the Code of Civil Procedure, and there was perfect harmony, therefore, between his plea and the position that he took at the trial. The sole question to be tried was, whether or not, in a court of the state of Iowa, an action against the defendant upon the note would have been barred by the statute of limitations of Iowa. In determining that question, the City Court very properly guided itself by the decisions of the Supreme Court of Iowa in exposition of the statute of that state (Sedgwick Stat. & Const. Law p. 425). I have looked at the cases cited by counsel in the 3d Iowa and the 51st Iowa, and also at a case in the 55th Iowa, and I find that where a debtor merely, excuses himself from paying the debt by asserting that he is unable to pay it, the courts of Iowa have refused to draw the conclusion that he is unwilling to pay, but rather have inferred that he desires *82to pay; and from the admission of liability and the imputed willingness to pay they have deduced an implied promise to. pay, which, according to the Iowa laws, revives the original indebtedness. It must be observed, however, that it is apparent from the case in the 55th Iowa that the Supreme Court of that state intends so to construe the Iowa statute as to bring their decisions into harmony with the policy that has lately governed the courts of other states in expounding the statute of limitations. That policy I understand to be to treat the statute as a statute of repose, and to hold that if there be accompanying circumstances that repel the presumption of a promise or an intention to pay, or if the expression be vague, equivocal, and indeterminate, or if it be apparent that the debtor contemplated a compromise with the creditor, or if there is room for a difference of opinion as to whether or not the debtor intended to pay the claim just as the creditor presented it for payment, the demand is not taken out of the operation of the statute. But the conclusion that the City Court arrived at, is, in my opinion, fully warranted by the decision in 3d Iowa.
In order to prevent misunderstanding in the future, I deem it proper to say that, but for the determination of the defendant to stake his case upon the efficiency of the Iowa statute as a bar, the courts of New York, after deciding that that statute had not run, would have tested the defendant’s liability by the lex fori, the statute of limitations of the state of New York. In other words, if the debt were barred by the Iowa statute, no action upon it could be maintained in a court of this state; but if the debt were not barred in Iowa, the statute of limitations of the state of New York might nevertheless have been a bar, in this action.
Labbemore, Ch. J., and J. F. Daly, J., concurred.
Judgment affirmed, with costs.