Blair v. The Erie Railway Company. contract limiting defendant's liability are merely general, and even if the deceased had been a party to it, they would not amount to a release of liability arising from defendant's negligence. R. R. Co. v. Lockwood, 17 Wall. 357; Smith v. N. Y. C. R. R., 24 N. Y. 222; Bissell v. N. Y. C. R. R. Co., 25 id. 442; Poucher v. N. Y. C. R. R. Co., 49 id. 263 ; Ominger v. N. Y. C. and H. R. R. R. Co., 6 T. & C. 498, 501. MILLER, J. The defendant seeks exemption from liability for the injuries sustained by the plaintiff's intestate, upon the ground that the intestate was bound by the terms of the contract entered into between the defendant and the express company, and that such contract exonerates the defendant from liability for negligence. The original contract between the defendant and the express company provided that the defendant should transport, free of charge, the money-safes, contents and messengers of the express company, "the party of the first part assuming no liability whatever in the matter." By the subsequent modification of the contract provision was made that the railway company should assume the usual risks upon express matter, except that they should not assume any risk or loss upon any money, etc., for which, with the express company's safes and messengers, no charge for carriage was to be made, and the latter were to pass free of charge. The condition referred to was general in its character, and evidently related to the liability and duty of the defendant in its ordinary dealings with the express company. It does not purport to control or adjust any other rights or duties. It contained no provision, and there was no agreement that the company should not be liable for negligence, and the scope of the contract is not to be extended beyond what was evidently intended and was in the contemplation of the parties. Conceding the doctrine that the defendant had a right to protect itself by contract from any liability for negligence on the part of its employees, such protection cannot be invoked unless the contract contains a provision to that effect. None of the cases which hold that the defendant is exonerated under a special contract go to the extent claimed, or affect a contract of the character of the one now presented. In Smith v. The New York Central Railroad Company, 24 N. Y. 222, the contract was, that persons riding free to take charge of the stock, do so Vol. XXIII.-S ! Blair v. The Erie Railway Company. at their own risk of personal injury from whatever cause." The ticket also provided that such person takes "all the responsibility as to the injury of himself and stock." In Bissell v. The Same, 25 N. Y. 442, the contract was the same as in the last case cited, and on the ticket was an agreement that the company should not be liable under any circumstances, "whether of negligence of their agents or otherwise," for any injury to the person or stock. In the prevailing opinions in this case, the decision is placed upon the terms of the contract and some stress is laid on the same; but as such contract expressly provided that the person riding did so at his own risk of personal injury, I do not see that it bears any analogy to a contract which contains no such clause and does not stipulate against personal risks. In Poucher v. The New York Central Railroad Company, 49 N. Y. 263, the contract provided against negligence of the defendant or its agents or otherwise. See, also, Stinson v. New York Central, 32 N. Y. 333. It will thus be seen, that in each of the cases cited there was an express provision which evidently guarded against every kind of personal injury from whatsoever cause," which might, perhaps, include such as might arise from negligence. While here no language is employed which can be fairly interpreted as aimed against negligence, it would, I think, be extending the purpose and scope of the contract in this case far beyond its legitimate object, to hold that it was designed to protect the defendant against its own negligent acts. The English cases which are cited and which have been examined do not establish the proposition contended for, and no case has been referred to, where it is held, that any language, except such as was entirely clear and unmistakable in its terms, will exempt a railroad company from liability for negligence. It may also be observed that there is quite a distinction between cases where damages for injuries are expressly provided against, or where the traveler agrees to be carried at his own risk and those where the contract states generally that the carrier assumes no liability. If the views enunciated are correct, then the defendant would not be exonerated from liability for negligence where the messenger was injured, and it would seem to follow that one who was temporarily injured in his place would stand in the same position. There is no provision in the contract which prevents the employ. ment, by the express company, of any person as a messenger, or in Blair v. The Erie Railway Company. the place of such messenger, when, for any reason, he is prevented from attending to his duties. The intestate, therefore, was lawfully upon the cars and entitled to the same protection as the messenger whose place he filled. The circumstances presented bear no analogy to that of a person who is invited by a conductor without authority, and contrary to the regulations of the company, to ride upon a train which is not intended to carry passengers without paying his fare, as was the case in Eaton v. Delaware, Lackawanna & Western Railroad Company, 57 N. Y. 382. For the reasons already stated, without considering the other questions raised, the judgment was right and must be affirmed. ALLEN, J. Upon a reasonable interpretation of the contracts between the defendant and express company, there is no stipulation that the persons riding free, as messengers of the latter company, shall take and bear all risks of personal injury, without recourse to the carrier for compensation for damages sustained through its negligence or the negligence of its servants. There is no provision in terms restricting the liability of the railway company to the messengers of the express company, or distinguishing the latter from other passengers carried upon the road, or who may be lawfully on the trains as passengers. Without an express exemption, provided by contract, the defendant is liable for the consequences of its negligence, or that of its servants, to all persons traveling and carried upon its trains, as messengers or agents of the express company, to the same extent as to other passengers. Nolton v. W. R. Corporation, 15 N. Y. 444. The clause in the contract of 1858, relating to this subject, was abrogated by the third paragraph in the contract of 1871, which covers the whole subject, and makes provision for the carriage of the passengers of the express company, without charge, and limits the exemption from liability to risks or loss on money, bank notes, bonds, gold, bullion or jewelry packages. These packages, with the safes and messengers of the express company, are to be carried free of charge, but the latter are not included within the clause exempting the carrier from liability, but are only included within the exemption from charges for carriage. The contract of 1858, in this respect, is ambiguous, and does not clearly and certainly exempt the railway company from liability for personal injury to the passengers carried under it, resulting from negligence. An exemption can only Smith v. Ryan. exist when expressly created by contract, and can only be claimed here upon a strained construction of the contract. But this ambiguity is cleared up by the contract of 1871, and whether the latter contract is the only one to be considered, or both are to be read together, there is no exemption of the railway company from liability to the messengers and agents of the express company. The latter are carried as passengers, the carrier company receiving its compensation from the incidental benefits of the contract, and it must respond to them as to others for injuries caused by negligence. This leads to an affirmance of the judgment, without considering the other questions raised. SMITH, appellant, v. RYAN. (66 N. Y. 332.) Statute of Limitations Acknowledgment of debt · Payment by note of third persons. A debtor delivered to his creditor, in part payment of his debt, the promissory note of a third person which was paid at maturity. Held, that this was sufficient acknowledgment of the debt to suspend the operation of the statute of limitation; but that the statute began to run again from the time when the note was delivered to the creditor and not from the time when it was paid. A ant. CTION by Smith as survivor of the firm of Smith & Son, to recover a balance on account alleged to be due from defendThe defense was the statute of limitations. That on the 10th day of April, 1868, the defendant was indebted to the said firm in the sum of $2,501.53 on account; that on or about the 14th day of April, 1868, the defendant indorsed and delivered to the said firm two notes for $500 each, made by Betts & Gay, dated April 6, 1868, and payable in two and five months respectively, with interest from their date; that, upon the receipt of the said notes from the defendant, they were entered in the books of plaintiff's firm by charging them to bills receivable and crediting them to the defendant's account; that upon the maturity of said notes, respectively, the principal and interest thereon were paid to the plaintiff's firm, and the sums collected for principal thereon Smith v. Ryan. were carried to the credit of bills receivable upon their books; that the last item proved in the mutual account, between defendant and the plaintiff's firm, was the receipt in September, 1868, of the amount of the note of Betts & Gay for $500, and the interest thereon for five months; that this action was commenced on the 5th day of June, 1864, within six years after the said last item of the said account between the defendant and plaintiff's firm. As conclusion of law he found that plaintiff was entitled to julgment for the balance of the account, and judgment was entered accordingly. This judgment was rendered by the General Term of the Superior Court of New York, and plaintiff appealed. Simuel Hand, for appellant. The delivery of the notes being on a precedent debt, and there being no evidence of an agreement to take them in absolute payment, the presumption is that they were received as collateral, to be credited as payments when paid. Noel v. Murray, 13 N. Y. 167; Gibson v. Tobey, 46 id. 637; Vail v. Foster, 4 id. 312; Darnall v. Morehouse, 45 id. 64, 71; Whitbeck v. Van Ness, 11 Johns. 409; Breed v. Book, 15 id. 241. The notes were not a payment when delivered. Edw. on Bills and Notes, 272; Bank of Utica v. Ballou, 49 N. Y. 155; Commercial Bank v. Warren, 15 id. 577; Huntington v. Ballou, 2 Lans. 120. The date of the payment is to be reckoned from the payment of the notes. Whipple v. Blackington, 97 Mass. 476; Chapman v. Boyce, 16 N. H. 237. The indebtedness in suit Jas. B. Lockwood, for respondent. was barred by the statute of limitations. Y. 442; Turney v. Dodwell, 24 E. L. and Eq. 92; Hart v. Nash, 2 Cr., M. & R. 337; Hooper v. Stephens, 4 A. & E. 71; Pickett v. Leonard, 34 N. Y. 175; Miller v. Talcott, 46 Barb. 167; Wainman v. Kynman, 1 Exch. 116; Tippets v. Heane, 4 Tyr. 772; Butts v. Perkins, 41 Barb. 509; Read v. Hurd, 7 Wend. 408. The statute began to run from the time of the transfer of the notes to defendant. Gowan v. Forster, 3 B. & Ad. 507; Griffiths v. Owen, 13 M. & W. 58; James v. Williams, id. 828; Irving v. Veitch, 3 id. 90. The makers of the notes were not the defendant's agents for any other purpose than to relieve him of his liability on the notes; they could not bind him on the antecedent debt. Creuse v. Defiganiere, 10 Bosw. 122; Pickett v. Leonard, 34 N. Y. 175; Bloodgood v. |