
    SMITH REYNOLDS, Resp’t, v. WALTER SUTTON, App’lt.
    Mortgagee—Payment of—When evidence insufficient.
    
      J. S. Miller, for app’lt; E. S. Dusenbury, for resp’t.
   Barnard, P. J.

When the plaintiff took the assignment of the mortgage in question the interest upon it had been paid up to the 22d of December, 1875, except the sum of one dollar. Hester Haight, upon whose life the interest payments depended, died on the 13th of October, lb 84. The time during which the interest is to be computed is, therefore, eight years, nine months and twenty-one days. This will result in the sum of $3,082.92. Allowing all the payments on the bond it will amount to the sum of $2,986, and this shows a sum due of $96.92. There is, however, one credit in the bond of $100, which is disputed. There is now entered on the bond, between payment of the date of May 3 and September 10, 1879, received $100.

The plaintiff and his daughter both testify that the endorsement was not upon the bond when it was delivered to the defendant upon the occasion of the last payment of $174, which was then supposed to be in full. The defendant is equally positive it was on the bond and that he did not make it. Unfortunately the defendant destroyed the receipt very soon after the settlement, and then the most certain assurance of truth is removed. The evidence that the indorsement was not on when the payments were received, one by Mr. Fish, and compared with the bond in the defendant’s presence, shortly after the satisfaction piece was given, seems to be controlling under the circumstances.

The judgment of the special term should be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.  