115 N.Y.S. 227 | N.Y. App. Div. | 1909
The defendant appeals from a judgment in favor of the plaintiffs in an action upon two promissory notes, tried before the court without a jury. The action is by the assignees of the executors of the payee against the administrator of the maker. zThe maker and the payee were Donnelly, Jr., and Donnelly, Sr., son and father, who had been in business together, biit who separated in 1898, when Donnelly, Jr., went elsewhere because of failing health. The plaintiffs produced and read the notes in evidence, dated August 27, 1900, and October 30, 1900, respectively, each for $500, at 6 months and 1 year respectively, each purporting to be for value received,- and the latter expressly bearing interest. The plaintiffs also proved by a grandson of Donnelly, Sr., that there was a. safe in the house of Donnelly, Sr.,-in charge of the witness, who held the combination .of the lock thereto; that Donnelly, Jr.,-had known the combination, but had forgotten it, and that in June, 1903, the witness unlocked the safe at the request of Donnelly, Jr., in order that the latter might look over certain fire insurance policies, and that while examining certain papers in an unlocked wooden box of the safe Donnelly, Jr!, came across these notes, whereupon Donnelly, Jr., said to his1 sisters, who were standing by, “You are very careless with these notes — you ought to take better care of them,” and that Donnelly, Jr., then took them and placed them in a little iron box of the safe designed for cash, above the wooden box.
The defense was payment. While the burden of proof upon the main issue remained on the plaintiffs throughout the trial, the burden of establishing that defense was upon the defendant. (See Conkling, v. Weatherwax, 181 N. Y. 258, per Cullen, Ch. J.; Lerche v. Brasher, 104 id. 160.) This distinction as to the burden of proof is pointed out generally, per Gray, J., in Doheny v. Lacy (168 N. Y. at 220.) To establish payment, the defendant offered in evidence two paid checks, each for $500, drawn by Donnelly, Jr., to Donnelly, Sr., bearing date November 22, 1901, and June 9, 1902, respectively. There is no evidence of the purpose of these checks. The checks are not dated so as to meet the notes when they fell due, for the first note fell due on February 27, 1901, and the second on October 30, 1901. The defendant, however, invokes the presumption that those payments were on account of
It is insisted that the evidence of the plaintiffs is not of the degree of proof required of claims against the estates of the dead within the rule of Matter of Van Slooten v. Wheeler (140 N. Y. 624) and Matter of Marcellus (165 id. 70), but I think that it is sufficient even within' that rule. Further, I see no reason why the plaintiffs cannot invoke the same rule as to the standard of proof as against the defendant in his defense of payment, inasmuch as the reason therefor obtains. If this is so, then they contended upon the same plane. The proof of the mere legacy of $100 war. not proof of an extinguishment pro tanto or otherwise. (Smith v. Murray, 1 Dem. 34, and authorities cited.)
The judgment should be affirmed, with costs.
Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.
Judgment affirmed, with costs.