
    Henry F. Hart et al., Ex’rs, Resp’ts, v. George A. Riley, Impl’d, App’lt.
    
      (Supreme Court, General Term., Fifth Department,
    
    
      Filed October 23, 1890.)
    
    Bills and notes—Presumption of settlement Of accounts.
    On the margin of the note in suit was a computation by which its amount was arrived at. It was claimed that certain payments on a land contract received by the payee of the note had not been accounted for to the maker thereof. The last of such payments was made more than two years before the note was given. Held, that the presumption arising from the giving of the note, that any previous indebtedness of the payee to the maker had been paid or settled, was strengthened by the evidence of a careful computation on the face of the note, and that such alleged payments could not be allowed.
    ' Appeal from a judgment of the county court of Monroe county, entered on the report of a referee.
    
      Messrs. Durand, for app’lt; William E. Edmonds, for resp’ts.
   Dwight, P. J.

The action was for the foreclosure of a mortgage of real estate made by the defendant; Eiley to one George D. Stillson. The bond was conditioned for the payment of $1,000, for money to that amount deposited by Stillson in bank for the benefit of Eiley, and also for the payment of “ all other indebtedness now due and unpaid or which may hereafter be created and agreed to be paid,” etc. .The bond and mortgage were made in 1875.

Among the items of indebtedness concededly secured by the mortgage was a promissory note made in 1868, and saved from the statute of limitations by an endorsement of moneys and a new promise, made thereon in 1874. The only question in this case arises upon a plea of payment applicable to a portion of this note.

In 1861, Eiley sold a piece of real estate in Bochester to one Malloy, and gave him a contract for a deed, upon which quarterly payments were to be made by the purchaser. That contract, with its endorsements, was put in evidence by the defendant, and-it appeared that several of the payments, made thereon in 1863 and 1866, had been received by Stillson, and there was no direct evidence to show that he had ever accounted to Eiley for the money so received.

Of course the evidence of the receipt of these sums before the note was given was not admissible under a plea of payment; but objection to the sufficiency of the answer in this respect was expressly waived, and it thereupon became a question merely whether the ■ giving of the note was presumptive evidence that any previous indebtedness of the payee to the maker had been paid or settled. It was no doubt prima fade evidence to that effect, though subject to explanation. DeFreest v. Bloomingdale, 5 Denio, 304; Lake v. Tysen, 6 N. Y., 461. And what appeared on the face of the note, in this case, so far from indicating the contrary, had the effect, we think, to strengthen the presumption of an accounting and settlement between the parties up to that time. The note was in the following terms:

Bochester, May 15, 1868.

Good to G. D. Stillson for four hundred twenty-three eighty-one-hundredths dollars cash borrowed and received to-day and heretofore.

(Signed), Geo. S. Eiley.

And on the margin of the note was a computation by which the amount of the note was arrived at. In this computation there was first set down the sum of §150, from which the sum of $80 was deducted, and to the balance of §70 there were added three other sums, making up a total of $428.80, which was the amount of the note. No dates were attached to any of these items, but the credit of $80 corresponds in amount with the largest of the sums receipted for by Stillson on the back of the land contract. The remaining sums so receipted for, which, with the $80, are claimed as off-sets to the note in question, amount to only §45, and the latest of them was received nearly two years before the date of the note.

In the face of this evidence of a careful computation of debit .and credit, by which the amount was arrived at for which the note should be given, there is no reasonable probability that any indebtedness from the payee of the note to the maker remained unaccounted for or unsettled at that time, and the finding of the referee to the contrary was well supported.

The judgment must be affirmed.

Judgment affirmed, with costs.

Macomber and Corlett, JJ., concur.  