
    Jacob Levy, Respondent, v. Emma Friedman, as Administratrix with the Will Annexed of Seymour Beutler, Deceased, Appellant.
    (Supreme Court, Appellate Term, First Department,
    December, 1913.)
    Evidence — admissibility—in action to recover balance of alleged loan — declarations by executrix as to validity of claim.
    In an action to recover the balance of an alleged loan due from defendant’s decedent, the declarations of his executrix to plaintiff, to the effect that his claim was valid and would be paid, are inadmissible.
    A declaration by an executrix cannot bind her decedent’s estate unless made while in the discharge of her duties as executrix.
    In the absence of explanation, the presumption arising from delivery of a cheek is that it was in payment of a debt or else was a gift and was not a loan.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, rendered in favor of plaintiff for $432.80, besides costs.
    Denis O’L. Cohalan (Julian Arthur Leve and Daniel J. Mooney, of counsel), for appellant.
    Max Schleimer, for respondent.
   Guy, J.

This action was brought to recover a balance of $365 on an alleged loan of $400, made by defendant’s decedent.

The answer is a general denial. The original defendant, Matilda Beutler, administratrix with the will annexed of Beutler, died after the trial, and Emma Friedman, who succeeded her as administratrix with the will annexed, was substituted.

Plaintiff testified that in January last he called on the former defendant executrix, and under objection and exception he testified: “I said: ‘ How about my money? ’ ”; that she said to him: “ I found out that the endorsements on those checks were my son’s; I also found out that you loaned that money and I have also found out that the money was not paid back to you. * * * I am not in a position for a few days to pay it yet as I have only been appointed, and I had. a hard time getting the appointment. Now, if you come around in a few days everything will be straightened out and you will be paid; ’’ also that he received a check from Doctor Friedman, a son-in-law of defendant executrix, for $35, and that the $400 loan was by check. Two checks aggregating the amount of the loan, drawn by plaintiff, one to Seymour Beutler and the other to bearer, and both indorsed “ Seymour Beutler ’’ were proved.

A declaration by an executrix cannot bind the estate she represents, unless made while engaged in the discharge of her duties as executrix. Church v. Howard, 79 N. Y. 415, 418, 419; Scully v. McGrath, 201 id. 61, 64; Davis v. Gallagher, 124 id. 487, 491, 492.

Conversations between an alleged creditor of an estate and the executrix, in which the executrix, in answer to questions by the alleged creditor, gives her views or beliefs as to matters. relating to the estate, do not establish a claim against the estate, nor do they bind the estate, because they are not made while the executrix is acting in discharge of her duties as executrix, nor while she was transacting any business for the estate. Nor do they amount to a settlement of any claim by or against the estate. If every loose conversation by an executrix about an estate is an admission which binds it, no estate would be safe. Church v. Howard, 79 N. Y. 415, 418, 420.

In the absence of explanation, the presumption arising from the delivery of a check is that it' was delivered in payment of a debt or else was a gift and was not a loan. Leask v. Hoagland, 205 N. Y. 171, 177; Nay v. Curley, 113 id. 575, 577.

The cases holding that formal written admissions by executors in pleadings, accounts, inventories, also in written settlements or accounts stated, are prima facie evidence against the estate (Breese v. Graves, 67 App. Div. 322, 326-329; Crouse v. Judson, 41 Misc. Rep. 338), are not in point.

Seabury and Bijur, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  