
    (76 Hun, 32.)
    UNITED STATES TRUST CO. v. STANTON et al.
    (Supreme Court, General Term, Second Department.
    February 12, 1894.)
    1. Statute of Limitations—Payment to Remove Baii.
    A payment on a bond within the statutory period was relied on to remove the bar of the^ statute. A witness testified that he made the indorsement on the daté specified, but he also testified that he received the money, not from the obligor in the bond, but from the obligee, and that he did not know when the obligee received the money from the obligor. Held insufficient. Cullen, J., dissenting.
    2. Same—Burden of Proof.
    Where a payment indorsed on a bond within the statutory period is relied on to remove the bar of the statute, the burden is not on defendant to prove that the payment was not made within the statutory period.
    3. Pleading—Averment of Plaintiff's Title.
    The complaint in an action on a bond alleged that it was executed by defendant to L. and D., executors of, and trustees under, the will of B.; that plaintiff had been appointed trustee under said will in place of L., deceased; and that by the appointment the bond passed to plaintiff. But it did not allege that the bond was an asset of B.’s estate. Held, that the complaint did not show any right in plaintiff, the words “executors and trustees” being only descriptive of the person. Cullen, J., dissenting.
    Appeal from special term, Kings county.
    Action by the United States Trust Company against Philip V. E. Stanton and others to foreclose a mortgage. From a judgment in favor of plaintiff, defendant Stanton appeals. Reversed.
    For former reports, see 21 N. Y. Supp. 229, affirmed by 34 N. E. 1098.
    Argued before DYKMAN, PRATT, and CULLEN, JJ.
    P. V. R. Stanton, (Josiah T. Marean, of counsel,) for appellant.
    Edward W. Sheldon, for respondent.
   PRATT, J.

The burden was upon plaintiff to prove that the last indorsement of interest was made later than October 10, 1867. For that purpose was put in evidence the bond which bore an indorsement dated October 23, 1867, and a witness was called who testified that he made the indorsement on that date. Further examined, he testified that he received the money, not from the debtor in the bond, but from the obligee, and that he had no personal knowledge of the date when the obligee received the money from the debtor. Upon the question being put to the witness whether the obligee may not at that time have had the money for a month, he answers, “He may have had it a year, for. what I know.” The admission of the obligee that the $87 interest was paid was at that time against his interest, and is therefore competent evidence to prove the payment. Whether a statement of the obligee as to' the time of payment, not being against interest, could be put in evidence, is a different question, but no such statement was made. We are at loss to see that the proof goes any further than to prove that the payment was made at some time on or previous to October 28, 1867. That is manifestly insufficient to remove the bar of the statute.

The interest was due on May 1, 1867, and, if any presumption can be indulged in as to the time of payment, it is probable that payment was made when due. The court below felt the weight of these considerations, but, on the ground that the defendant did not personally offer to testify, gave judgment for plaintiff. We think this was error. If plaintiff desired defendant’s testimony, they should have called him. Where a transaction is so ancient, a witness whose professional experience must have taught him the imperfection of human memory may well hesitate to offer himself as a witness in his own behalf. We do not see that any presumptions should from that be drawn against him.

The court below seemed to consider that the burden was on defendant to prove the payment was not within 20 years. We think that was error. The complaint alleges that the bond and mortgage were executed by defendant to Leveridge and Duryea, “executors of the last will and testament of Bowne, and trustees appointed in and by his last will.” It further alleges that plaintiff has been appointed trustee under the will of Bowne, in place of Leveridge, deceased; and the conclusion of law is alleged that, by the appointment, the bond and mortgage passed to the plaintiff. There is no allegation that the bond and mortgage were an asset of the estate of Bowne. The words “executors and trustees” are only descriptive of the person. There is no allegation that the will established any trust of personal property. The complaint, therefore, failed to state á cause of action in the plaintiff, and the motion made at the opening of the trial to dismiss the complaint should have been granted. The judgment must be reversed; and as the cause, for reasons which have abundantly appeared on the former trials, is not one for which an amendment of the complaint should be granted, final judgment must be given for defendant, with costs.

DYEMAN, J., concurs.

CULLEU, J.,

(dissenting.) This is an appeal from a judgment of the special term for the foreclosure of a mortgage. The complaint sufficiently averred title in the plaintiff. It alleged, that the bond and mortgage in suit passed to the plaintiff as part of the estate of Gilbert W. Bowne, under the order of the court appointing plaintiff trustee. The bond ran to Leveridge and Duryea, “executors of the last will and testament of Gilbert W. Bowne, and trustees appointed in and by said will/’ conditioned for payment to said Leveridge and Duryea, “and the survivor of them, their or his successors in office, or assigns.” Granting that the omission of the word “as” in the first portion of the instrument made the terms “executors and trustees,” standing by themselves, mere descriptio personae, the condition of the bond that the payment was to be made to Leveridge and Duryea, their survivor and successors in office, clearly shows that the obligation ran to them in their representative capacity. People v. Miner, 37 Barb. 466; Beers v. Shannon, 73 N. Y. 292. The mortgage is of the same tenor. The case is therefore plainly to be distinguished from that of Peck v. Mallans, 10 N. Y. 509.

It is conceded that the indorsement on the bond of the payment of interest was prima facie sufficient to take the claim out of the statute of limitations. But it is said that in this case the indorsement has no probative effect, because it appears from the testimony of the person who made it that the check or money was received from one of the trustees, who might have obtained it time enough before the making of the indorsement to bar the mortgage by the statute. That trustee is dead, the transaction is over 25 years old, and the witness, who was the clerk and accountant of the trustee, naturally cannot recall the details of the payment. We think the presumption is that the payment was made at the time of the entry; especially in the absence of any evidence to the contrary on the part of the defendant. The judgment appealed from should be affirmed, with costs.  