
    (69 Hun, 61.)
    PAINTER v. POWER.
    (Supreme Court, General Term, Second Department.
    May 8, 1893.)
    Negotiable Instruments—Evidence—Payment.
    In an action by an administratrix on a note payable to decedent, it appeared that, after the note was given, defendant made payments to,decedent, aggregating more than the amount of the note. When the last payment was made, decedent applied part of it on the note, and gave defendant a receipt acknowledging- such sum, and stating that he had indorsed it on the note. There was evidence that there were previous transactions between them, on which the sums paid could have been applied. Sold, that the finding of the referee that the note was unpaid was supported by the evidence.
    Appeal from judgment on report of referee.
    Action by Adelaide L. Painter, as administratrix of Thomas A. Painter, deceased, against Robert J. Power, on a note. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    E. A. Carpenter, for appellant.
    Thomas F. Bisgood, for respondent.
   BARNARD, P. J.

The plaintiff, as administratrix of her hus band, seeks to recover the amount of a note dated May 24, 1889, for $700. Fifty dollars was admitted to have been paid. The defendant set up a counterclaim for $1,132.45, for moneys had and received by the plaintiff’s deceased husband, in his lifetime. The trial before the referee was wholly taken up by proof for and against this counterclaim. The referee found against the same, and the appeal is from his finding on that question. The evidence is quite unsatisfactory as to the real truth of the indebtedness to the deceased. One party is dead, and the other cannot testify. The books of deceased do not show the real balance. The account, as proven, includes large amounts satisfactorily proven to have been paid in the lifetime of the deceased. The “question is narrowed by the proof to a credit of three items on the books of deceased. As has been stated, the note was dated and given on May 24, 1889. On August 4, 1889, the deceased received from the defendant $527; on August 30, 1889, $100; and on September 14, 1889,. $110. If these moneys were paid on the note, and not credited, the note is extinguished by the moneys received. The proof is decisive against this application. On September 14, 1889, (the date of the last payment of $110,) the deceased applied on the note in amount $50, and gave a receipt to defendant acknowledging the receipt of $50, and stating that he had indorsed that amount on the note: If the previous payments were made in extinguishment of the note, the receipt should have stated it, and not have left the note outstanding, except this one reduction. The general rule must be applied to the case that checks will be deemed to rest upon a debt when there is no explanation. In this case the proof shows that, after all the payments were made, the parties recognized the note as unpaid, and applied on it a portion of a sum then received. There is also proof ihat there were considerable previous transactions between them upon which the sum paid could be applied. The referee therefore is supported by the evidence in finding that the note is unpaid, deducting the $50 payment on it, and that there is no counterclaim proven. His, judgment should therefore be affirmed, with costs. All concur.  