
    Adelaide L. Painter, Adm’rx, Resp’t, v. Robert J. Power, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    Bills and notes—Payment.
    In an action on a note held by plaintiff’s intestate, it appeared that after its date deceased received from defendant certain sums of money aggre-
    ' gating more than its face. It appeared, however, that when the last payment was made, the deceased credited only a part of such payment on the note and gave a receipt which so stated, and there was evidence of previous transactions on which the payments could be applied. Held, that the referee was justified in finding that the note was unpaid except to the extent of such credit.
    Appeal from judgment in favor of plaintiff for $985.34, entered on the report of a referee.
    
      E. A. Carpenter, for app’lt; Thomas F. Bisgood, for resp’t.
   Barnard, P, J.—The

plaintiff, as administratrix of her bus-. band, seeks to recover the amount of a note dated May 24, 1889, for $700. Fifty dollars was admitted to have been paid. The' defendant set up a counterclaim for $1,132.45, for moneys had and received by the plaintiff’s deceased husband in his lifetime. The trial before the referee was wholly taken up by proof for and against this counterclaim. The referee found against the same, and the appeal is from his finding on that question. The evidence is quite unsatisfactory as to the real truth of the indebtedness to the deceased. One party is dead, and the other cannot testify. The books of deceased do not show the real balance. 'The account as proven includes large amounts satisfactorily proven to have been paid in the lifetime of the deceased. The question is narrowed by the proof to a credit of three items on the books of deceased. As has been stated, the note was dated and given on May 24, 1889. On August 4, 1889, the deceased received from the defendant $527 ; On the 30th August, 1889, $100, and on 14 September, 1889, $110. If these moneys were paid on the note and not credited, the note is extinguished by the moneys received. The proof is decisive against this application. On the 14 September, 1889, the date of the last payment of $110, the deceased applied on the note in amount $50, and gave a receipt to defendant acknowledging the receipt of $50, and stating that he had indorsed that amount on the note. If the previous payments were made in extinguishment of the note, the receipt should have stated it, and not have left the note outstanding except this one reduction. The general rule must be applied to-the case that checks will be deemed to rest upon a debt when there is no explanation. In this case the proof shows that after all the payments were made the parties recognized the note as unpaid, and applied on it a portion of a sum then received. There is also proof that there were considerable previous transactions between them upon which the sum paid could be applied. The referee, therefore, is supported by the evidence in finding that the note is unpaid, deducting the $50 payment on it, and that there is no counterclaim proven.

His judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.  