
    MARY E. SHERMAN, Administratrix, etc., v. PETER D. McINTYRE.
    
      Promissory note — the giving of, evidence of settlement of all demands between the parties — presumptive only, not conclusive.
    
    Appeal from a judgment in favor of the defendant for $102.73, entered on the report of a referee, in an action upon a promissory note for $100, executed by defendant to the plaintiff’s intestate. The proofs given and received at the trial in explanation of the giving of the note in this action, showed that it was a mere accom modation note, given by the defendant for the benefit of another person to whom plaintiff’s intestate was not willing to lend the amount of the money specified in said note, without security, but agreed to do so upon the defendant’s responsibility as indorser or otherwise. The referee found that the defendant established a set-off (a large part of which claim existed before the giving of the note), exceeding the amount of said note.
    The court says: “ It is well settled in this State that proof of the giving of a promissory note by one person to another, nothing else appearing, is prima faeie evidence of an accounting and settlement of all demands between the parties, and that the maker at the date of such note was indebted to the payee upon such settlement to the amount of such note. {lake v. Tysen, 6 N. Y., 461; De Freest v. Bloomingdale, 5 Den., 304; Dutoher v. Porter, 63 Barb., 20.) But this is a mere presumption, which may be repelled by proof of the consideration of such note, and of the occasion for and circumstances attending the giving of the same.”
    
      8. N. Dada, for the appellant. Howe de Bice, for the respondent.
   Opinion by

Smith, J.

Present — Mttllin, P. J., Smith and Noxon, JJ.

Judgment affirmed.  