
    Patrick Corless, Respondent, v. William T. Carlisle, as Ancillary Executor, etc., of Bryan Nevins, Deceased, Appellant.
    First Department,
    April 8, 1910.
    . Decedent’s estate — failure to establish claim against decedent — evidence — books kept by plaintiff— admissions of testator — section 839, Code Civil Procedure.
    Action against an executor under section 2718 of the Code of Civil Procedure to recover moneys alleged to be due from the testator at the time of his death. Evidence examined,' and held, insufficient to show that payments of money by the plaintiff to the testator established any indebtedness of the latter.
    In such action books kept by the plaintiff in which at certain times he had been seen to enter payments' made by him to the testator are not admissible in evidence for any purpose.
    Mere proof that the testator shortly before his death said that he owed money to the plaintiff, without identifying the debt, does not establish the claim.
    Although a claimant against an estate cannot testify to personal transactions with the decedent contrary to section 829 of the Code of Civil Procedure, his inability to produce competent proof does not authorize a judgment upon' insufficient proof.
    Appeal by the defendant, William T. Carlisle, as ancillary executor, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rew York on the 20th day of December, 1909, upon the report of a referee.
    
      Robert A. B. Dayton, for the appellant.
    
      John H. Regan, for the respondent.
   Scott, J.:

This is an appeal by defendant from a judgment entered upon the report of a referee in a proceeding under section 2718 of the Code of Civil Procedure. The claim is for a sum of money alleged to be a balance of account due to plaintiff from the decedent at the time of his death.

Both the claim and- the evidence to support it are extremely vague, and it is nowhere disclosed wlfat the precise relations between plaintiff and deceased were, or how plaintiff' arrived at the particular sum which he claims. It appears that at some time late in the year 1904 the deceased bought a saloon at Sixty-seventh street and Columbus avenue in the city of New York, intending it for his brother, William F. Nevins. William, however, was ill át tlie time and unable to undertake the' care of the saloon, and the deceased decided to put it in charge of plaintiff. All that the testimony shows about the transaction is that deceased said to plaintiff “I will put you in full; I will pay the bills,” to which plaintiff replied: If you will give me the money I will start the place.” What this means is not explained. . All that the conversation discloses is that deceased was to furnish the money, and plaintiff was to carry on the business. There is nothing to indicate, and certainly no presumption, that deceased intended to make a present to plaintiff, and the evidence above quoted is consistent with either one of two possible theories, viz., that defendant proposed to sell the place to plaintiff, or that he put plaintiff into the place to run the business for him. The evidence is that plaintiff paid money to deceased from time to time; that plaintiff cashed checks for other persons and that these checks found their way into decedent’s bank account, and that deceased paid or assumed the bills for liquor purchased for the saloon run by plaintiff. All this evidence is consistent with either of the above theories as to the nature of the transaction, and under neither theory is it sufficient to show that the payment of money, by plaintiff to the deceased created an indebtedness in favor of the former.

The referee erroneously admitted in evidence an account book said to have been kept by plaintiff, in which at certain times he was seen to enter payments made to deceased. The referee expressly, stated that the book was not received as evidence of its contents, but merely to corroborate a witness who said he saw entries made therein.

The book was not competent for any purpose and should not have been received. The only other piece of evidence at all bearing upon the claim is that deceased was heard to say, a few months before his death, when he was preparing to go abroad, that plaintiff had money coming to him, and that he (deceased) would give it to him. This furnishes no foundation for the allowance of any particular sum, but at the most indicates that at some time the deceased owed plaintiff something. Of course, the provisions of section 829 of the Code of Civil Procedure interpose obstacles to the proof by a claimant in such a case as this, but the inability to produce competent proof does Hot authorize the allowance of a claim upon insufficient proof as was done in this case.

The judgment appealed from must be reversed and a new trial granted before another referee, with costs and disbursements to the appellant to abide the event. ' .

. Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.

Judgment reversed, new trial ordered before another referee, costs to appellant to abide event. Settle order on notice.  