8 N.Y.S. 447 | N.Y. Sup. Ct. | 1890
This action was brought in May, 1888, to recover upon a promissory note for $5,212.50, bearing date December 20, 1866, payable
It is true that presumption of payment after 20 years is a presumption of fact, and not of law, and therefore must ordinarily be found by a jury; yet, where the evidence is of such a character that the jury must give effect to the presumption, and a contrary verdict would be set aside as against the weight of evidence, the court may dispose of the question by dismissing the complaint or directing a verdict. The claims sued upon are 21 years old. The plaintiff was in needy circumstances, having taken the benefit of the bankrupt act in 1871; and, if he then held the note, presumably parted with it to his assignee in bankruptcy, and, although meeting the defendant frequently, never made any claim upon him for its payment. Furthermore, the plaintiff cannot produce the note. He says it is lost. How, when, or where, he does not tell us. Under these circumstances, no jury could be allowed to declare that the presumption of payment had not been established. The fact that lapse of time raises a presumption of payment is expressly recognized in the case of Bean v. Tonnele, 94 N. Y. 881; and where no claim has been made for 21 years, and the note cannot be produced, and the plaintiff is shown to have gone into bankruptcy, it is difficult to see how a stronger case can be made, only arising from a presumption of payment.
As for the claims for advances and services, they rest upon the same foundation, except, perhaps, the evidence is not quite so conclusive, as these alleged debts were not- evidenced by any written instrument which is not produced.
We do not think it necessary to discuss the question of the statute of limitations, as the point suggested disposes of the exceptions'. Exceptions overruled, and judgment ordered for defendant, with costs. All concur.