
    Archelus M. Conrad, as Adm’r, etc., Resp’t, v. Genett Archer, App’lt.
    
      (Supreme, Court, General Term, Fourth Department,
    
    
      Filed April, 1887.)
    
    1. Appeal—Where record does not present evidence on which trial court acted its determination cannot be reviewed.
    The record on appeal not showing all the evidence on which the trial court acted in refusing an application to postpone a trial, held, that this question could not be reviewed, that the court liad no means of determining whether the trial court had abused its discretion and that it must be presumed that it did not.
    3. Executors and administrators—-What acts done before appointment NOT VALIDATED BY THEIR RECEPTION OF LETTERS—3 R S , 71, §16.
    Where one of the joint makers of a note payable to a decedent sold merchandise to a person who was subsecpiently appointed as executrix. Held, that the subsequent reception of letters testamentary did not relate back and cover and validate the act. 3 R. S., 71, § 16
    3. Same—What does not constitute counterclaim in action against.
    
      Held, that the amount due on such sale was properly disallowed as a counterclaim in an action brought on the note against one of the makers by the legal representatives of the payee.
    4. Same—What acts done before appointment are validated by the reception of letters.
    
      Held, that a payment made by one of the makers of the note to a person subsequently appointed as the executrix of the payee was validated by her appointment as such and withdrew the note fmm the operation of the statute of limitations.
    September 4, 1872, Alanson Bates and Genett Archer, by their joint and several promissory note, agreed to pay, one year after date, Daniel Lee or bearer $1,000, with interest. The interest was paid to Daniel Lee annually up to and including September 4, 1877. In January, 1878, Lee died, leaving a will, in which his daughter Diana L. Mattison was nominated as executrix. January 21, 1878, Mrs. Mattison left the note with William Austin, an attorney, for collection, who, April 26, 1878, received fifty dollars on it from the bands of Genett Archer, which was endorsed thereon. Austin expended between thirty-two and thirty-three dollars in paying the taxes assessed on decedent’s land and for digging his grave, and the remainder was spent in the litigations of the estate. It appears that litigations arose shortly after the death of Lee, and that about September 5, 1878, a temporary administrator was appointed, to whom the attorney delivered the note March 27, 1878. Decedent's will was probated July 15, 1879, and July 18,1879, letters testamentary were issued thereon to Diana L. Mattison, which were revoked November 25, 1879, and letters of administration, with the will annexed, were issued January 30, 1884, to the plaintiff. The summons in this action was served on Archer March 28, 1884, but has not been served on Bates.
    The facts above stated are conceded, or testified to by defendant’s witnesses, and are not disputed.
    This action is defended upon two grounds: (1), That Archer did not knowingly make the fifty dollar payment of April 26, 1878, and that this action is barred by the Statute of Limitations; (2), That Bates, in 1878, sold and delivered to Diana L. Mattison merchandise which she agreed to apply as a payment on the note, which demand is set up as a counter-claim.
    The trial judge ruled that the claim for goods sold was not a legal counter-claim, and submitted to the jury the question as to whether Archer handed the fifty dollars to Austin as a payment on the note.
    The jury found for the plaintiff.
    A motion for a new trial upon a case was denied at special term, a judgment entered, and the defendant appeals from the order and the judgment.
    
      Smith & Robertson, for pl’ff-resp’t; William Austin, for def’t-app’lt.
   Follett, J.

The appellant urges that the trial court erred in refusing his application to put the case over the term at which it was tried. The affidavit upon which the motion was made appears in the case, but the respondent’s counter-proofs do not, it being recited: “ Whereupon plaintiff’s attorney made counter-statements, to which no objection was made on the grounds that they were not sworn to, and were received by consent in lieu of affidavits, and upon the affidavit and statements made, and upon all the facts appearing, his application was denied by the court. ”

The evidence upon which the trial court made its decision not being before this court, it is apparent that the refusal to postpone the trial of the case cannot be here reviewed.

Without the evidence upon which the trial court acted this court has no means of determining whether the trial court abused its discretion, and it must be presumed that it did not.

We are asked to grant a new trial upon the ground that the verdict is contrary to the evidence. It does not appear that the case contains all of the evidence, or all bearing upon the disputed payment, and this court is consequently without the means of reviewing this question. Hunt v. Bloomer, 13 N. Y., 341, 343; Cox v. James, 45 id., 557; Porter v. Smith, 35 Hun, 118; Spence v. Chambers, 39 Hun, 193.

By the verdict it is settled that the appellant paid the fifty dollars with intent that it should be applied as a payment on the note.

The court rightly rejected the alleged counter-claim arising from a sale of merchandise by one of the makers of the note to Diana L. Mattison before the will was probated. Her subsequent reception of letters did not cover and validate, by relating back, this act. 2 R. S., 71, § 16; Humbert v. Wurster, 22 Hun, 405.

The appellant took no exceptions to the charge of the court, and the exceptions taken by the appellant to the rulings upon the admission and exclusion of evidence are quite unimportant and do not require consideration.

When the plaintiff first rested the defendant moved for a non-suit, which was denied, but the motion was not renewed at the close of the evidence.

Whether Austin had sufficient authority to receive the payment and so prevent the statute of limitations from running against this action, does not seem to have been distinctly raised in the trial court; but assuming it to be presented by the appellant’s very general motion fór a non-suit, we think, under the evidence, that the question must be answered to the affirmative. Lewis Mattison swears: “I told him (Archer) that Mr. Bates (his co-maker) sent: me down there to see if I could not get fifty dollars to pay our taxes with on this Bates and Archer note; * * * I told him it was in Mr. Austin’s hands, and he said he would pay fifty dollars on it if Mr. Austin would give him a receipt against the administrator.”

This was in April, and on the twenty-sixth of the same month the fifty dollars was paid by Archer to Austin, who paid from it $28.13 taxes, and $4.00 or $4.50 for digging decedent’s grave. A portion of the money was applied for-the benefit of the estate, and as the defendant understood it was to be applied. Subsequently Diana L, Mattisou received letters testamentary and acted as executrix. This reception of this payment was such a necessary act for the protection of the estate as was covered and validated by her subsequently becoming the executrix of the estate. Bellinger v. Ford, 21 Barb., 311, 314 and cases there cited; Priest v. Watkins, 2 Hill, 225, Matter of Faulkner, 7 id., 181.

The judgment is affirmed, with costs.

Hardin, P. J., and Boardman, J., concur.  