
    Foote v. Valentine.
    
      (Supreme Court, General Term, First Department.
    
    May 18, 1888.)
    1. Evidence—Presumptions—Production of Promissory Note.
    The production of a promissory note raises the presumption that the sum mentioned therein is due, and it is incumbent upon the defendant, if there are defenses, to show them.
    3. Appeal—Review—Pacts Pound by Referee.
    Upon appeal from an order setting aside a referee’s report, the findings of fact therein must support the conclusions of law, and the evidence will not be examined for the purpose of making new findings of fact.
    3. Same—Practice—Motion to Set Aside Report of Referee.
    Where plaintiff moves to set aside a referee’s report, and defendant moves to confirm the same, and defendant’s motion is granted, and judgment entered, it is the proper practice for plaintiff to make a case, and, upon such case made, to move again to set aside the report, though the appeal from the order granting that motion is decided upon a question which might have been raised on an appeal from the order confirming the report.
    Appeal from special term, Hew York county; Miles Beach, Justice.
    This was a proceeding, under the statute, upon a claim against the estate of an intestate, by Elizur V. Foote against Sarah M. Valentine, administratrix of George W. Valentine, deceased. The claim was in form of a promissory note executed by the intestate. The administratrix rejected the claim, and the matter was, under the statute, sent to a referee, who decided in her favor. The administratrix moved to confirm, and at the same time plaintiff moved to set aside, the referee’s report, and for a new trial. The motion of the administratrix was granted, and that of plaintiff denied, and judgment was entered in favor of the administratrix. Thereafter plaintiff, upon a case made containing all the testimony, moved to set aside the report, and his motion was granted, from which the administratrix appeals.
    Argued before Van Brunt, P. J„ and Brady and Bartlett, JJ.
    £. Jones, for appellant. S. H. Thayer, for respondent.
   Van Brunt, P. J.

In the consideration of the questions raised upon this appeal, it is not at all necessary to consider in detail the facts presented by the record. Unless the findings of fact of the referee support his conclusions of law, the judgment thereupon rendered cannot be sustained. Although upon the argument a considerable portion of time was devoted by the appellant to the discussion of questions of fact tending to support findings of fact not included in the referee’s report, we do not think we can examine the evidence for the purpose of making new findings upon this appeal. The claim presented by the plaintiff was upon a promissory note produced by him made by the decedent. The presumption arising upon the production of this note necessarily was that the sum of money therein mentioned was due by the decedent to the payee in the note mentioned. It was an- acknowledgment of indebtedness, and a promise to pay. The defenses to that note were necessarily affirmative in character, and it was incumbent upon the defendant, in order to establish such defenses, to do so by competent proof, showing that either the note never had any consideration, or that it had been paid, or that the consideration had failed, or some defense of this affirmative character. If, upon the evidence in this case, the referee had found, as a matter of fact, that the note had been paid, or that it had no consideration, perhaps, upon appeal from this general term, that finding might have been sustained. But his report is conspicuous by the absence of any finding upon this subject. Upon the contrary, he seems to have proceeded upon the theory that it was incumbent upon the plaintiff, in addition to the note, to establish, in the first instance, some promise or agreement upon the part of the decedent to pay the note, and that it was also necessary that the plaintiff should establish, in the first instance, that a consideration had been given for the note, or that there wras some indebtedness between the decedent and himself for which the note was given. In this the learned referee was clearly in error, because, by the production of the note, all those circumstances were affirmatively established, in the absence of proof showing a different condition of affairs. The referee has made no finding upon any such proof. He has simply based his conclusions upon the failure of the plaintiff to prove facts in addition to the production of the note. If this was to prevail, then the possession of commercial paper by a payee would never be any evidence of indebtedness. We think that the order setting aside the report was properly made.

An additional point was made that Mr. Justice Beach could not properly entertain the motion. We think that the proper practice was pursued. Although upon an appeal from an order confirming a report the question upon which this appeal is decided might have been raised, yet it was not incumbent upon the plaintiff to bring the questions involved in this appeal up to the general term simply upon what might be termed the judgment roll. The only method in which he could get the evidence before the court was upon a case made, and a motion to set aside the report upon such case made. The order should be affirmed, with costs.

Brady and Bartlett, JJ., concur.  