
    Adelaide L. Painter, as Administratrix, etc., of Thomas A. Painter, Deceased, Respondent, v. Robert J. Power, Appellant.
    
      Application of payments — effect of a receipt stating the application of a poi’Uon of the money received.
    
    In an action brought by an administratrix to recover upon a promissory note made by the defendant to the plaintiff’s intestate, it appeared from the books of the deceased that he had received from the defendant, after the making- of the note, certain sums, which, if applied on the note, would have extinguished it; that a portion of the last money received was applied on the note, and the deceased gave the defendant a receipt stating that such portion had been indorsed on the note; it also appeared that there were other transactions between the parties, upon which the payments by the defendant could have been applied!'
    
      Held, that this tended to prove that after all the payments in question weremade, the parties recognized the note as unpaid and applied on it a portion of the sum then received, and that the other payments were not applied on the note, and that it supported a finding that the note was unpaid except as to the portion for which the receipt had been given.
    Appeal by tbe defendant, Robert J. Power, from a judgment of tbe Supreme Court, entered in tbe office of tbe clerk of Suffolk county on tbe 26th day of August, 1892, upon tbe report of a referee in favor of tbe plaintiff.
    
      B. A. Carpenter, for. tbe appellant.
    
      Thos. F. JBisgood, for tbe respondent.
   BarNard, P. J.:

The plaintiff, as administratrix of her husband, seeks to recover tbe amount of a note dated May 24, 1889, for $100. Fifty dollars was admitted to have been paid. Tbe defendant set up a counterclaim for $1,132.45, for moneys bad and received by tbe plaintiffs deceased busband in bis lifetime. Tbe trial before tbe referee was wholly taken up by proof for and against tbis counterclaim. Tbe referee found against the same, and tbe appeal is from bis finding on that question. Tbe evidence is quite unsatisfactory as to tbe real truth of tbe indebtedness to the deceased. One party is dead and tbe other cannot testify. Tbe books of deceased do not show tbe real balance. Tbe account, as proven, includes large amounts satisfactorily proven to have been paid in tbe lifetime of tbe deceased. 'The question is narrowed by the proof to a credit' of three items on the books of deceased. As lias been stated the note was dated and given on May 24, 1889. On August 4, 1889, tbe deceased received from tbe defendant $52Y. On tbe 30th of August, 1889, $100, and on tbe 14th of September, 1889, $110. If these moneys were paid on tbe note and not credited, tbe note is extinguished by tbe moneys received. Tbe proof is decisive against tbis application. On tbe 14th of September, 1889, the date of tbe last payment of $110, tbe deceased applied on tbe note tbe amount of fifty dollars and gave a receipt to defendant acknowledging tbe receipt of fifty dollars and stating that he bad indorsed that amount on tbe note. If tbe previous payments were made in extinguishment of tbe note, the receipt should have stated it and not have left the note outstanding, .■except tbis one reduction. Tbe general rule must be applied to tbe case that checks will be deemed to rest upon a debt when there is no explanation. In tbis case tbe proof shows that after all tbe payments were made tbe parties recognized tbe note as unpaid and ■applied on it a portion of a sum then received. There is also proof that there were considerable previous transactions between them upon which tbe sum paid could be applied. Tbe referee, therefore, is supported by the evidence in finding that the note is unpaid, deducting tbe fifty-dollar payment on it, and that there is no ■counterclaim proven.

His judgment should, therefore, be affirmed, with costs.

Pbatt, J., concurred.

•Judgment affirmed, with costs.  