
    The United States Trust Co., Trustee, v. Philip V. R. Stanton, Impl'd, Resp't.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 12, 1892.)
    
    1. Limitation—Payment.
    Proof of the entry by the bookkeeper of a trustee in his books of a payment of interest on a mortgage, and an endorsement thereof on the bond, with testimony of the bookkeeper that the payment was so made to him, contradicted only by the mortgagor’s testimony that the payment was not made to said witness, is sufficient proof of such payment to take the mortgage out of the statute.
    3. Executors and administrators—Mortgage—Set-pee. ,
    Services performed for an estate cannot be set-ofE against a mortgage held by it, in the absence of an agreement by the executor that they should be received as payment on the mortgage.
    Appeal from judgment in favor of defendant, except so much as dismisses the counterclaim.
    Action to foreclose a mortgage given to the estate of which plaintiff is the substituted trustee.
    
      Edward W. Sheldon (Samuel H. Benton, of counsel), for app’lt;
    
      P. V. B. Stanton, resp’t in person.
   Barnard, P. J.

On the 19th of May, 1862, the defendant executed a bond and mortgage for $2,500 to the executors of the last will of George W. Bowne. The plaintiff, on the 23d of November. 1886, was appointed to succeed the executor as trustee, and thereby acquired the title to the bond and mortgage. The last surviving trustee under the will of Bowne was John Beveridge, and the question first presented is, whether a payment of interest was made to him on the 23d of October, 1867. If not so made, the statute of limitation has run against the bond and mortgage. This payment is clearly proven. George Beveridge, a son of the trustee, John Leveridge, kept the books of the trust estate at that time. On this 23d day of October, 1867, there appears an entry made by the bookkeeper, George P. Leveridge, of the payment of a half year’s interest, $87.50. At the same date and by the same person an entry was made of the payment upon the bond. The witness testifies directly that the payment was made to him on that day ; entries of this particular payment were also made in the joint cash book and upon the ledger. The proof of the payment is complete, and is entirely uncontradicted, except that defendant testifies that the last payment was not made to this witness. The case shows that the defendant, Stanton, was the attorney for the estate before the plaintiff was substituted. The finding is that he performed services for a very large amount, and that the payments thereon had been small. The question, as a general question, is unimportant, as the court of appeals has held that the attorney has no lien or claim against the estate in the hands of the present -trustee. Stanton v. King, 76 N. Y., 585.

The trial court has found that the services were of a greater amount than the amount of the mortgage, and this presents the only remaining question. Was it right to set off the services against the mortgage and thereby pay it ? The counterclaim for services would not be supported by the evidence if the action was directly brought upon it against the plaintiff as generally representing the estate. Code, § 502 ; New v. Nicoll, 73 N. Y., 127.

There was no agreement that the alleged services should be received as a payment on the bond and mortgage. The defendant testifies that he does not remember he ever “ had any conversation with anybody on that subject.” A payment not being proven it follows that the defendant Stanton must rest upon his counterclaim, and that, as settled by the protracted litigation shown by the papers, he cannot do.

The judgment should be reversed and a new trial granted, costs to abide event.

Dykman, J., concurs ; Pratt, J., not sitting.  