
    Lake v. Tysen.
    
      Accownt stated.
    
    The giving of a promissory note is primd facie evidence of a settlement of accounts between the parties.
    Appeal from the general term of the Supreme Court, in the second district, where a judgment in favor of the plaintiff,-entered on the report of a referee, had been affirmed.
    This was an action upon a promissory note, dated the 5tK December 1845, whereby David J. Tysen, the defendant, promised to pay to the order of James S. Lake, the plaintiff, the sum of seventy-five dollars, on demand. The defence was a set-off.
    *The action was tried before a referee, who f ^ allowed the defendant $14.33 by way of set-off, ^ and deducted that amount from the amount of the note and interest, leaving a balance due the plaintiff of $90.77, for which he gave judgment, with costs. The defendant complained that the referee rejected several items of his set-off which should have been allowed. The principal ground of complaint was the omission of the referee to allow the defendant for one-half of the value of a horse belonging to him, which he insisted died in consequence of improper usage by the plaintiff and the brother of the defendant, and which the plaintiff promised to pay
    It appeared by the report of the referee, that William H. Tysen, a brother of the defendant, came to the plaintiff’s house, with a horse belonging to the defendant. That William H. Tysen and the plaintiff harnessed this horse, with another horse procured by the plaintiff, to a wagon, and drove them about the neighborhood, stopping at various places; that both horses were injured by this usage, the defendant’s so much, that he died the same evening. That, within a year or two afterwards, the plaintiff said he had promised the defendant to pay him for one-half of said horse. The referee held, among ■ other things, that the giving of the note by the defendant to the plaintiff was presumptive evidence that all prior claims between the parties were settled; and he assigned several other reasons for rejecting the claim for the injury to the horse. ' .
    From the judgment entered on the report of the referee, which was affirmed at general term, the, defendant took this appeal. \
    
      Degroot, for the appellant.
    
      Catlin, for the respondent.
   Welles, J.

(after stating the facts.) — The giving of a promissory note is primd facie evidence of an accounting and ■ settlement of all demands between the parties, and that the maker was indebted to the payee upon such settlement, to the amount of the note. (2 Starkie’s Ev., Phil. ed. of 1834, p. 182; Defreest v. Bloomingdale, 5 Denio 304.) The presumption is only prima Jade, and is * 4631 explained; *but, until explained, it -* is to be taken as true, and affords sufficient evidence of the maker’s indebtedness in that amount.

In the present case, the promise to pay for one-half of the horse was long before the date of the note upon which the action was brought. No evidence was given or offered to show for what, in fact, the note was given; and consequently, it is to be presumed, that all claims of the appellant against the respondent, including that for the horse, were settled and adjusted at the time the note was given, and that the appellant, at that time, owed the respondent its amount.

As this view disposes of the case, it is unnecessary to consider whether the other reasons assigned by the referee for rejecting the claim, were sufficient, or whether the appellant would have been entitled to set it off, provided he had shown, upon the trial, that it was not taken into account, when the note was given. The judgment of the court below should be affirmed with costs.

Judgment affirmed. 
      
       To the same point, see Dutcher v. Porter, 63 Barb. 15 ; Sherman v. McIntyre, 7 Hun 592; Treadwell v. Abrams, 15 How. Pr. 219 ; Miller v. Probst, Add. 344; Fairchild v. Dennison, 4 Watts 258.
     