
    SCHUCHMAN v. HOCHSTIM.
    (Supreme Court, Appellate Term.
    May 16, 1907.)
    Payment—Evidence.
    Where plaintiff sued as executor to recover $145 alleged to be due his testator and defendant pleaded payment to the extent of $130, held, that the evidence was insufficient to show a payment of more than $100.
    Appeal from Municipal Court, Borough of Manhattan, Fourth District.
    
      Action by John P. Schuchman, as executor, etc., against Max Hochstim. From a Municipal Court judgment in favor of defendant, plaintiff appeals.
    Reversed, and new trial ordered.
    Argued before GILDERSLEEVE, P. J., and SEABURY and BRADY, JJ..
    Benno Loewy, for appellant.
    Joseph Kleiner, for respondent.
   BRADY, J.

Plaintiff sues as executor to recover $145 alleged to be due his testator, with interest from September 26, 1905. Defendant’s answer pleads payment of the claim to the extent of $130, and alleges that “there is only due the plaintiff the sum of $15, which the defendant is willing to tender into court.”

The only evidence of payment is given by a witness who testified that he was present at an interview when defendant and the testator talked about the bill, and witness saw defendant pay testator some money, and heard defendant say to testator, “I will pay you the bill, less $15 for the vest.” Witness said there was a $100 bill and some bills of smaller denomination. He could not specify the denomination or amount. The evidence is not sufficient to show payment of more than $100.

The record is indefinite upon the question of tender. No proof of tender before suit was offered, and it does not appear from the record whether the amount admitted by the answer to be due was paid into court.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.  