
    Annie Lynch and Mary Donnelly, Respondents, v. John D. Lyons, as Administrator, etc., of Andrew Donnelly, Jr., Deceased, Appellant.
    Second Department,
    March 5, 1909.
    Bills and notes — payment—burden of proof — presumptions — legacy does not extinguish debt.
    The burden of proving the main issue in an action upon a promissory note remains with the plaintiff throughout the trial, but the burden of establishing the defense of payment is upon the defendant.
    Where a defendant sued on promissory notes puts checks in evidence to establish payment without showing the purpose for which the checks were given, there is nevertheless a presumption that they were given in payment of the debt, even though there is no proof that there were no other dealings between the parties upon which the payments might have been made. This, because there is no presumption that there were other dealings between the parties.
    But whore the plaintiff in order to- rebut the presumption of payment gives proof that there were other transactions between the parties contemporaneous with the giving of the checks and involving payments of similar amounts, and has shown possession of valid uncanceled notes, he has sustained the burden of proof upon the whole issue. Slight evidence is sufficient to show that a . demand in suit was not settled by payment.
    
      It seems, that where the representative of a payee sues the representative of a maker the latter in proving payment is held to the same high degree of proof that is required in the case of all claims against an estate.
    Mere proof that the payee left a legacy to the maker is not proof of the extinguishment of the debt pro tanto or otherwise.
    Appeal by the defendant, John D. Lyons, as administrator, etc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of Rockland on the 30th day of December, 1907, upon the decision of the court rendered after a trial at the Rockland Special Term.
    
      Henry W. Smith [George H. Smith with him on the brief], for the appellant.
    
      William McCauley, for the respondents.
   Jenks, J.:

The defendant appeals from a judgment in favor of the plaintiffs in an action upon two promissory notes, tried before the court without a jury. The action is by the assignees of the executors of the payee against the administrator of the maker. zThe maker and the payee were Donnelly, Jr., and Donnelly, Sr., son and father, who had been in business together, biit who separated in 1898, when Donnelly, Jr., went elsewhere because of failing health. The plaintiffs produced and read the notes in evidence, dated August 27, 1900, and October 30, 1900, respectively, each for $500, at 6 months and 1 year respectively, each purporting to be for value received,- and the latter expressly bearing interest. The plaintiffs also proved by a grandson of Donnelly, Sr., that there was a. safe in the house of Donnelly, Sr.,-in charge of the witness, who held the combination .of the lock thereto; that Donnelly, Jr.,-had known the combination, but had forgotten it, and that in June, 1903, the witness unlocked the safe at the request of Donnelly, Jr., in order that the latter might look over certain fire insurance policies, and that while examining certain papers in an unlocked wooden box of the safe Donnelly, Jr!, came across these notes, whereupon Donnelly, Jr., said to his1 sisters, who were standing by, “You are very careless with these notes — you ought to take better care of them,” and that Donnelly, Jr., then took them and placed them in a little iron box of the safe designed for cash, above the wooden box.

The defense was payment. While the burden of proof upon the main issue remained on the plaintiffs throughout the trial, the burden of establishing that defense was upon the defendant. (See Conkling, v. Weatherwax, 181 N. Y. 258, per Cullen, Ch. J.; Lerche v. Brasher, 104 id. 160.) This distinction as to the burden of proof is pointed out generally, per Gray, J., in Doheny v. Lacy (168 N. Y. at 220.) To establish payment, the defendant offered in evidence two paid checks, each for $500, drawn by Donnelly, Jr., to Donnelly, Sr., bearing date November 22, 1901, and June 9, 1902, respectively. There is no evidence of the purpose of these checks. The checks are not dated so as to meet the notes when they fell due, for the first note fell due on February 27, 1901, and the second on October 30, 1901. The defendant, however, invokes the presumption that those payments were on account of the existing debt. (See Lawson Presump. Ev. 344.) There is respectable authority that the defendant could not rely on such presumption without further showing that there were no other dealings between the parties upon which such payments might have been made (Somervail v. Gillies, 31 Wis. 152), for the reason that the rule otherwise requires- the aid of the presumption that there ' were no dealings and presumption cannot rest on presumption. But the rule seems otherwise in this State. (Matter of Callister, 153 N. Y. 308; De Freest v. Bloomingdale, 5 Den. 304; Sperry v. Miller, 16 N. Y. 414; Lake v. Tysen, 6 id. 462; Duguid v. Ogilvie, 3 E. D. Smith, 527.) The law does not presume a gift. (Grey v. Grey, 47 N. Y. 552; Nay v. Curley, 113 id. 578.) And there was no presumption that there were other business dealings between these parties. But the plaintiffs then went forward with proof to show that Donnelly, Si\, had sold certain realty in the place where Donnelly, Jr., lived to Mrs. Loderliose for $2,000 in June, 1900, which she was. to pay in installments, with interest, within 3 years, and that she made such payments within that time by checks drawn in favor of Donnelly, Jr., who always receipted therefor in "the name of Donnelly, Sr. These checks were' made November 14, 1901, $560; June 3, 1902, $545; December, 1903, $515; December 1,1902, .$530; June 1,. 1903, $15. While the. amounts received were in excess of $500, a receipt of November 22, 1901, is for $500. principal and $60 interest, and is of the date of one of the said $500 checks from Donnelly,. Jr., to Donnelly, Sr. A receipt of June 3, 1901, is for $500 principal and $45 interest, and the other check from Donnelly, Jr., to Donnelly, Sr., is for $500, dated June 9, 1902. Aside from the interest,' these two payments to Donnelly, Jr., for Donnelly, Si-., are identical with the amounts of the two checks and are closely related as to time. Assuming, then, that there was “ a shifting of the weight of evidence ” on the issue of payment, perforce of the presumption, the plaintiffs thus went forward to show these" other business dealings between the parties which might naturally involve the giving of these two checks, and' at the close of the case they had sustained the burden of proof upon the whole issue to the extent of a showing of possession of valid notes, for valuable consideration, uncanceled and unpaid, conpléd with proof of the dealings of Donnelly, Jr., with the notes when they were found by him in the safe 2 years after his making of the $500 checks on which the defense of payment rests. In Somervail v. Gillies (supra), Dixon, Ch. J., says that such presumption of payment is met and overcome by the presumption arising upon possession by the payee of the uncanceled and uuextinguished note. Abbott in his Trial Evidence (2d ed. p. 1027) says that slight evidence is sufficient to show that the demand in suit was not settled by the payment.

It is insisted that the evidence of the plaintiffs is not of the degree of proof required of claims against the estates of the dead within the rule of Matter of Van Slooten v. Wheeler (140 N. Y. 624) and Matter of Marcellus (165 id. 70), but I think that it is sufficient even within' that rule. Further, I see no reason why the plaintiffs cannot invoke the same rule as to the standard of proof as against the defendant in his defense of payment, inasmuch as the reason therefor obtains. If this is so, then they contended upon the same plane. The proof of the mere legacy of $100 war. not proof of an extinguishment pro tanto or otherwise. (Smith v. Murray, 1 Dem. 34, and authorities cited.)

The judgment should be affirmed, with costs.

Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.

Judgment affirmed, with costs.  