
    Elizur W. Foote, Resp’t, v. Sarah M. Valentine, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1888.)
    
    Bills and notes—Presumptions.
    The presumption arising upon the production of a promissory note (which is sued upon) is that the sum of money therein mentioned was due by the drawee to the payee mentioned in the note. The defense to such note is necessarily affirmative in character and must be established by competent proof.
    Appeal from order setting aside report of referee, in favor of the defendant, to whom had been referred, under the statute, a claim by the plaintiff against the estate, and granting a new trial, and canceling of record the judgment entered upon the report.
    
      S. Jones, for app’lt; S. H. Thayer, for resp’t.
   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 court. 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 acknowledgement of indebtedness and a promise to pay. The defences to that note were necessarily affirmative in character, and it was incumbent upon the defendant, in order to establish such defences, to do so by compent proof, showing either that 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 matter of fact that the note had been paid, or that it had no consideration, perhaps upon appeal to 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 was some indebtedness between the decedent and himself for which the note was given.

In this the learned referee was clearly in error, bcause 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 rule 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.  