
    Benjamin S. Mills, executor, Resp’t, v. Lestor H. Davis,. Appl’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 23, 1886.)
    
    1. Promissory notes—Statute of limitations—Endorsement of interest —Evidence.
    Endorsements of the payment of interest upon a note, if proved to,have been made at or about the time they bear date, are competent evidence to-take the note out of the statute of limitations.
    3. Same—Code Civ. Pro., § 839.
    An endorsement, though evidence of a personal transaction with a deceased debtor, is not itself such a transaction, for to make it competent evidence, it is not necessary to show that it was made in the presence of the debtor, nor at the exact time of the payment by the debtor. Therefore neither plaintiff or his wife were disqualified under section 839 Code Civil Procedure from testifying as to the time endorsements were made.
    
      Strong & Spear, for resp’ts; Thomas J. Bitch, for app’lts.
   Cullen, J.

The endorsements of the payment of interest, if proved to have been made at or about the time they bear date, were competent evidence to take the note out of the statute of limitations. Roseboon v. Billington, 17 Johnson, 182; Risley v. Whytman, 13 Hun, 163. Neither the plaintiff nor his wife were disqualified from testifying as to the time endorsements were made. The endorsement, though evidence of a personal transaction with the deceased debtor, was not itself such a transaction. For to make them competent evidence, it was not necessary to show that they were made in the presence of the debtor, nor at the exact time of the payment by the debtor. The theory on which such endorsements are admitted in evidence is not that the debtor was cognizant of them, but that if made before the obligation was out-lawed, they are in the nature of declarations against interest. The rule allowing such endorsements as evidence, though severely criticised, seems settled by authority here and in England. The case of McClaren v. McMartin (36 N. Y., 88), is not in conflict with it. The note in that case even accepting as the fact the payment of interest endorsed on it, was outlawed before the death of the testator. It was held that the administrator could not by a subsequent payment revive the debt. The remarks of the learned justice delivering the opinion that the endorsements written by the payee were mere declarations in his own favor, were, obiter and possibly may have referred to the fact that there was no evidence as to the time the endorsement was made. However, the case was decided upon the other ground.

The note prima facie imported a consideration. If given without consideration, as claimed by defendant on this appeal, the defendant should have requested the referee so to find. There was no such request, and there is no exception in the case that presents this question to us for review.

The judgment should be affirmed with costs.

Dykman, J., concurs, Barnard, P. J., dissents.

Barnard, P. J.

(dissenting).—There is no proof in the case that any payment was made upon the note by the maker or by any one for her. An endorsement on the note if made hy the holder or by any one for her, would be an admission against herself that she had received what she admits to have received. The defendants claim nothing by reason of the admission and the case stands upon the sole question whether a holder of the note can by endorsements without payments keep alive a note. I think it clear she cannot even, if she made the endorsement of interest or authorized it. Still less if her son-in-law made such endorsements with her knowledge. The case of Roseboon v. Billington (17 J. R., 182), is not an authority in favor of a revival of or the continuance of a claim by an endorsement like this. The evidence of the endorsements was improperly received under section 829 of the Code. If the endorsements were acts of the plaintiff’s testator the plaintiff could not prove them in his own behalf. It is no answer to say that the endorsements are evidence for a jury as admissions of a party to a note against her own interest.

Such admissions must be proven by a witness unobjectionable under section 829 of the Code. I do not think the endorsements were made in the life-time of the testator. The parties who testify to it are interested and their examination is not convincing but quite the reverse.

The judgment should be reversed and a new trial granted at circuit with costs to abide event.  