63 N.Y.S. 112 | N.Y. App. Div. | 1900
In Kearney v. McKeon, 85 N. Y. 139, Judge Finch, in writing for a unanimous court, says:
“Claims withheld during the life of an alleged debtor, and sought to be enforced when death has silenced his knowledge and explanation, are always to be carefully scrutinized and admitted only upon very satisfactory proof; and when it further appears that a subsequent dealing existed, in which the pretended creditor was to some extent a debtor, never once presenting his claim in reduction of his debt, the weight of suspicion becomes very great, and justifies a demand for distinct and definite proof, and the clearest indication of honesty and fairness.”
In Van Slooten v. Wheeler, 140 N. Y. 633, 35 N. E. 587, Earl, J., in writing for. the court, says:
“Public policy requires that claims against the estates of the dead should be established by very satisfactory evidence, and the courts should see to it that such estates are fairly protected against unfounded and rapacious raids.”
From a careful scrutiny of the evidence, as it appears in the record, and of the original exhibits which have been presented to us, it seems
It is true that the evidence of the plaintiff’s wife is explicit, and that as to the last payment she is corroborated by the witness Cross. The plaintiff’s wife, however, is largely interested in the result of this action. The relations of the witness Cross to the plaintiff are not such as to make him a wholly disinterested witness. For 16 years while Harvey Tinkham was alive, this plaintiff could at any time have collected this note. His failure so to do, or even to make demand of any part thereof, together with the fact of his borrowing from Harvey Tinkham these several sums, for which he gave his notes, so far discredit the evidence offered in behalf of the plaintiff as to leave the conclusion of the learned referee without substantial support. The judgment should therefore be set aside, the referee discharged, and a new trial granted, with costs to the appellant to abide the event of the action.
Judgment reversed, referee discharged, and a new trial granted, with costs to the appellant to abide the event of the action. All concur, except MERWIIn, J., who dissents.