
    Thalas S. Kilmer, as Executor, etc., of Helen Quackenbush, Deceased, Appellant, v. Anthony Quackenbush and Maggie E. Quackenbush, Respondents.
    Third Department,
    March 19, 1908.
    Executor and administrator— evidence not showing loan —transaction with decedent — harmless error.
    In an action to recover money alleged to have been loaned by the plaintiff's testator, mere proof that a check was given by the testator and evidence that he was not indebted to the defendants for borrowed money or for board, is insufficient to establish a loan, for the presumption is that the check was in payment of money due.
    As the plaintiff failed to prove his cause of action, it is immaterial that one of the defendants was allowed to testify as to transactions with the decedent contrary to section 829 of the Code of Civil Procedure. '
    
      Appeal by the plaintiff, Tlialas S. Kilmer, as executor, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Schenectady on the 9th day of August, 1907, upon the dismissal of the complaint by direction of the court as to the defendant Anthony Quackenbush, and upon the verdict of a jury as to the defendant Maggie E. Quackenbush, and also from an order entered in said clerk’s office on. the 12th day of August, 1907, denying the plaintiffs motion for a new trial made upon the minute^.
    
      Thomas Woods, for the appellant.
    
      Alonzo P. Strong and Jacob W. Clute, for the respondents.
   Cochrane, J. :

The action is for money loaned by plaintiff’s testatrix to the two defendants, who are husband and wife. The amended answer consists of a denial of the loan and an allegation that the money alleged to have been loaned was a gift of the testatrix to the defendant Anthony Quackenbush.

At the trial plaintiff proved a check 'of the deceased on the Schenectady Savings Bank, payable to the defendant Maggie E. Quackenbush or bearer, and that it was presented to the bank and paid to her. He then called said Maggie E. Quackenbush as a witness and proved by her that the deceased was not indebted to her for borrowed money or any board money owing ” to her. He then called the other defendant as a witness and proved by him that he received the amount of the check from his wife, and that “ Mrs. Quackenbush ” was not indebted to him at that timo “ for borrowed money or money loaned.” Plaintiff then rested and the court dismissed the complaint as to the defendant Anthony Quackenbush and denied the motion for a dismissal as to his wife.

The only criticism which can be made as to such ruling is that the court did not at that juncture dismiss the complaint as to both defendants. Perhaps plaintiff had • in mind that he had negatived the presumption of an antecedent indebtedness by the deceased, but he had only established a lack of indebtedness for borrowed money or board. The presumption was that this payment was made because it was due and not as a loan. (Matter of Baldwin, 11 App. Div. 555.)

The court having refused to dismiss the complaint as to the wife, she thereupon called her husband as a witness in her behalf. TTis testimony tended to establish a gift from the deceased to himself. Plaintiff now complains that this testimony was inadmissible under section 829 of the Code of Civil Procedure. Such testimony, however, was not prejudicial to plaintiff, because without it there was no question for the jury. If this testimony be disregarded, plaintiff had failed to prove that the check was not given for an antecedent indebtedness from the deceased to the wife.

The judgment and order should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  