
    Ida M. Newcombe, as Executrix, etc., of Richard S. Newcombe, Deceased, Respondent, v. William I. Fox, Appellant.
    
      Bills and notes—presumption from their possession—payment not presumed from a delay infringing suit—improper evidence in rebuttal where the defense is not made out.
    
    Where on the trial of an action brought upon a promissory note plaintiff produces the note, a presumption arises that the plaintiff is the owner of the note.
    No presumption of the payment of a promissory note arises from the fact that an action is not brought upon it until the day before the day when it would have been barred by the Statute of Limitations.
    Where the evidence given to prove a defense is entirely insufficient, a new trial will not be granted for errors in the admission of evidence which is offered merely to rebut such defense.
    Appeal by the defendant, William I. Fox, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of May, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit.
    
      Michael A. Qumlan, for the appellant.
    
      William 11. Hamilton, for the respondent.
   Rumsey, J.:

The action is upon a promissory note, and the sole defense was payment.

The question presented on the merits of this appeal is only whether it was error to order a verdict for the plaintiff.

The note was dated November 1, 1886, payable on demand to Newcombe & Cardozo, and was produced by plaintiff. When that was done there arose a presumption that she was the owner of it. (Stephens v. McNeill, 26 Barb. 657.) It appears that suit was brought on the note on the 81st day of October, 1892, just before it would have been barred by the Statute of Limitations, and it is insisted that this delay in suing raised a presumption which, taken with the other facts, might be considered as tending to show that the note had been paid. It is doubless true that the fact of long delay in suing upon a claim is proper to be considered in some cases where the defense is payment. But from the mere fact of the delay in bringing suit upon a strictly legal claim, where the Statute of Limitations has not run against it, no presumption of payment can be raised.

The evidence relied on to show payment here is that of the witness Toner. The testimony of Cardozo contains nothing that bears, upon the question, except that after this suit was brought he had a talk with Fox, in which Fox claimed that he had paid the note and had a receipt, but he did not produce it when requested to do so. But that testimony was not competent and cannot be considered. The testimony of Toner is that in July, 1888, he wrote a letter to Fox, which, being produced, seems to have no relation to this matter. He says, however, that it referred to this note. He says that shortly after such letter was written, the witness saw Hewcombe and Fox come out of Hewcombe’s room and Hewcombe said that everything was arranged, that it was all right, and Fox asked : “ When can I get the note?” to which Hewcombe replied that he would look for it and send it to him. The witness further said that he thought, but was not positive, that Hewcombe told him to look up this note and send it to Fox. It appeared, however, that at the time of this talk between Hewcombe and Fox there were two other notes outstanding given by Fox to the firm, each of which was due, and the witness was unable to say to which of the three notes the parties referred in the talk given above. There was no further evidence of payment. This, as we think, was not enough to have enabled the jury to say that the note in suit was paid, and for that reason the court was correct in not submitting to them that question.

It is claimed by the defendant that the court erred in overruling the objection to the bill and letter sent by the firm of Hewcombe & Cardozo to Fox in 1889. Whether it was error to receive that evidence need not be decided. The evidence was offered by the plaintiff upon the question of payment. But whether or not she offered evidence on that issue made no difference. The defendant had failed to prove it and the court was bound to so hold. The proof was offered to show that the note was still unpaid and was entirely unnecessary because the defendant had failed in his effort to show that it was paid. For that reason the evidence referred to Could not have changed the result and the admission of the evidence did no harm. Where the evidence given to prove a defense is entirely insufficient a new trial will not be granted for errors in the admission of evidence offered merely to rebut such defense. (Bronson v. Tuthill, 1 Abb. Ct. of App. Dec. 206.)

The judgment should he affirmed, with costs.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  