
    Caroline E. Roe, as Executrix, etc., of William Roe, Deceased, Respondent, v. Adaline Nichols, Appellant.
    
      Evidence — absence of an entry in a bank book, not competent to show that money was not received — proof of the habits of a person, not competent to show that he did not borrow money.
    
    A bank pass book showing an account between a decedent and the bank, together with the vouchers referring to such account, are not competent for the purpose of showing that the decedent never received a sum of money from a third person, in consideration of which, it is alleged, that he gave his promissory note, there being no credit for the amount in question in such pass book.
    Proof of the fact that the habits of a decedent were simple and inexpensive, cannot be shown as beaming upon the probability of his having borrowed so large a sum as $1,000.
    Appeal by the defendant, Adaline Nichols, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 23d day of April, 1895, upon the verdict of a jury rendered after a trial at the Suffolk Circuit, and also from an order dated the 15th day of April, 1895, and entered in said clerk’s-office-denying the defendant’s motion fora new trial made upon the minutes.
    
      Timothy M. Griffing, for the appellant.
    
      George H. Furman, for the respondent.
   Willard Bartlett, J. :

The defendant was sued as the maker of a promissory note, dated at Patchogue, N. Y., November 4, 1889, whereby she promised to pay to William Roe or order, on demand, the sum of $1,060, with interest at six per cent. No question was raised as to the genuineness of this note. The defendant averred, however, that she received no consideration therefor and that she had been induced to sign it in ignorance of its amount and purport, upon the representation of the plaintiff, who conducted the transaction in which the note ■was given, that it was necessary to straighten up some business transaction between them. She also alleged that subsequently, when she ascertained the true import of the note, the plaintiff represented to her that it was for money previously loaned by William Roe, the payee named therein, to Stephen Jennings, a brother of the defendant, now dead, but the defendant denied that any such sum of money was ever so loaned to him.

The question whether there was any consideration for the note in suit was the only issue litigated on the trial, and that issue was narrowed by the assertion of the plaintiff in her testimony that the note was in fact given to replace a previous note, which she surrendered to the defendant at the time. This prior note, according to the plaintiff, was a joint note to William Roe for $1,000, executed by the defendant, Adaline Nichols, and her brother, Stephen Jennings. The brother having died, the plaintiff, who acted for her husband, William Roe, in the matter, says she asked the defendant for a new note, whereupon the note in suit for $1,000 principal, and $60 added for interest, 'was drawn up and signed, and the defendant destroyed the old one by putting it in the kitchen stove. Mrs. Nichols, on the other hand, testified that she never made any such joint note, and denied that Mrs. Roe surrendered any paper to her when the note in suit ivas signed.

In this conflict of proof, the determination of the case depended upon the view which the jury should take as to the existence or non-existence of the joint note described by the plaintiff. On this question, under instructions to which no exception was taken, the jury found in the plaintiff’s favor. We are asked to reverse the judgment entered on their verdict, because of two alleged errors in the exclusion of evidence.

Both rulings relate to the acts of Stephen Jennings, the brother of the defendant, who is said to have joined with her in making the original note. The defendant, against the plaintiff’s objection and exception, was allowed to read in evidence a book showing an account between Stephen Jennings and the Patchogue Bank from July 7 to August 18, 1887, together with the vouchers referring to such account. Subsequently, the learned trial judge expressed the opinion that the bank book and vouchers were inadmissible, and he struck them out, giving the defendant an exception. The argument in support of this exception is that the contents of the bank book were relevant and were properly admitted in the first instance as tending to show that Stephen Jennings hadyiever received $1,000 from "William Roe, because no entry of any such amount or of any money, said to have come from William Roe, was to be found in the bank book. But the bank book could not have been used by Stephen Jennings, when living, as evidence in his own behalf, to show that he had never received any such loan, and we do not perceive how it is any more available to the defendant. The entries in a depositor’s bank book, made by a receiving teller, are not evidence in the depositor’s favor against a third party. Furthermore, there is no presumption' that a man deposits in his bank all the money he may receive by way of loans, and the fact, however proved, that the money represented by the joint note did not go into the bank account of Stephen Jennings, was not legal evidence that he was not indebted to William Roe in that amount.

An inquiry was also attempted into the habits of Stephen Jennings, for the purpose of showing that they were simple and inexpensive, as bearing upon the probability of his having borrowed so large a sum as $1,000. Judge Wilmot M. Smith, who had been the executor of the estate of the father of Stephen Jennings, was a^ked whether the latter was a spendthrift or anything of that kind. The court sustained the plaintiffs objection to this question. The ruling was correct. General proof as to a man’s habits.in regard to the use of money is not relevant upon the question whether he made a particular promissory note or not. It deals with probabilities or possibilities too remote from the issue.

Finally, upon the point that the verdict was contrary to the evidence, it is only necessary to say that tliei’e is no such preponderanee as would justify us in interfering with the finding of the jury on that ground.

The judgment and order appealed from must he affirmed, with costs.

All concurred, except Cullen, J., not sitting.

Judgment and order affirmed, with costs.  