
    ELIZUR V. FOOTE, Respondent, v. SARAH M. VALENTINE, Administratrix of the Goods, etc., of GEORGE W. VALENTINE, Deceased, Appellant.
    
      Action upon a promissory note against the administrator of a deceased maker — it is not necessary to prose a promise to pay it by the decedent or a consideration — mode-of reviewing an order setting aside a referee’s report.
    
    In this proceeding, instituted to recover the amount of á promissory note made by the defendant’s intestate, the-claim was referred, under the statute, to a referee, who reported in favor of the defendant upon the theory that it was incumbent upon the plaintiff, in addition to the production of the note in evidence, to establish, in the first instance, some promise or agreement upon the part of thedecedant to pay the note, and to prove that a consideration had been given therefor, or that there was some indebtedness between the decedent and the-plaintiff for which the note was given:
    
      Held, that such report was properly set aside.
    That it was proper practice to bring the evidence before the court upon a case made, and a -motion to set aside the report based upon such case.
    That, although upon an appeal from an order confirming the report the question, might have been raised, it was not incumbent upon the plaintiff to bring such question to the General Term simply upon the judgment-roll.
    Appeal from an order, made at the New York Special Term, upon a case made, setting aside the report of a referee in favor of the defendant, to whom a claim made by the plaintiff against the-estate represented by the defendant had been referred nnder the-statute, and granting a new trial and canceling of record the judgment entered upon the report.
    
      
      8. Jones, for tbe appellant.
    
      8. II. Thayer, for tbe respondent.
   'Van BbuNT, P. J.:

In tbe consideration of tbe questions raised upon this appeal, it is not at all necessary to consider, in detail, tbe facts presented by tbe record. Unless tbe findings of fact of tbe referee support bis ■conclusions of law, tbe judgment thereupon rendered cannot be sustained. Although, upon tbe argument, a considerable portion of time was devoted by tbe appellant to tbe discussion of questions of fact tending to support findings of fact not included in tbe referee’s .report, we do not think we can examine tbe evidence for tbe purpose of making new findings upon this appeal. Tbe claim presented by tbe plaintiff was upon a promissory note produced by him, made by tbe decedent. Tbe presumption arising upon tbe production of this note necessarily was, that tbe sum of money therein mentioned was due by tbe decedent to tbe payee in tbe note mentioned. It was an acknowledgment of indebtedness, and a promise to pay. Tbe defenses to that note were necessarily affirmative in character, and it was incumbent upon tbe defendant, in order to establish such defenses, to do so by competent proof, showing either that tbe note never bad any consideration, or that it bad been paid, or that tbe ■consideration bad failed, or some defense of this affirmative character. If, upon tbe evidence in this case, tbe referee bad found, as a matter of fact, that tbe note bad been paid, or that it bad no consideration, perhaps, upon appeal to this General Term, that finding might have been sustained. But bis report is conspicuous by the absence of any finding upon this subject. IJpon the contrary, be •seems to have proceeded upon tbe theory that it was incumbent upon tbe plaintiff, in addition to tbe note, to establish, in tbe first instance, some promise or agreement upon the part of tbe decedent to pay tbe note, and that it was also necessary that tbe plaintiff should establish, in tbe first instance, that a consideration bad been given for tbe note, or that there was some indebtedness betweeen .the decedent and himself, for which the note was given.

In this tbe learned referee was clearly in error, because, by tbe production of tbe note, all those circumstances were affirmatively established in tbe absence of proof showing a different condition of affairs. Tbe referee bas made no finding upon any snob proof. Hebas simply based bis conclusions upon tbe failure of tbe plaintiff to prove facts in addition to tbe production of tbe note. If tbis rule was to prevail, then tbe possession of commercial paper by a payee would never be any evidence of indebtedness. 'We think that tbe order setting aside tbe report was properly made.

An additional point was made that Mr. Justice Beach could not. properly entertain tbe motion. We think that tbe proper practice-was pursued. Although, upon an appeal from an order confirming-a report, tbe question upon wbicb this appeal is decided might have-been raised, yet it was not incumbent upon tbe plaintiff to bring the-questions involved in tbis appeal up to tbe General Term simply upon what might be termed tbe judgment-roll. Tbe only method, in wbicb be could get tbe evidence before tbe court was upon a case-made, and a motion to set aside tbe report upon such case made.

Tbe order should be affirmed, with costs.

Beady and Baetlett, JJ., concurred.

Order affirmed, with costs.  