
    The United States Trust Co., Resp’t, v. Philip V. R. Stanton et al., Impl’d, App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 10, 1890.)
    
    1. Limitation—Payment to take case out op statute.
    An endorsement on a bond of a partial payment is not sufficient to take it out of the statute of limitations where the person making the endorsement does not remember receiving the money, but merely infers such payment and admits that he would have made it if his father had told him to do so.
    2. Same—Presumption op payment.
    Where the mortgagor for several years rendered services to the executors of the mortgagee, and no demand for payment of the bond and mortgage was thereafter made for nearly twenty years, these facts create a strong presumption that the value of the services were applied on the bond.
    3. Same—Evidence.
    In such case it is error to reject proof of the value of such services.
    
      Appeal from judgment in favor of plaintiff.
    Action to foreclose a mortgage.
    The action was begun October 10,1887, to foreclose a mortgage covering improved property in the city of Brooklyn, made May 19, 1862, by the defendants, Philip Y. B. Stanton and Adelaide B., his wife, to John Beveridge and Harmanus B. Duryea, executors of and trustees under the last will and testament of Gilbert W. Bowne, deceased, to secure $2,500, payable May 19, 1863,, with interest at seven per cent, payable semi-annually.
    Beveridge and Duryea having died, the plaintiff was appointed by the supreme court in November, 1886, substituted trustee, under said will.
    The bond and mortgage in question were received by the plaintiff subsequent to such appointment, and this action was thereupon instituted. The answer of the defendant, Stanton, alleged various defenses. The only ones, however, upon which reliance-was apparently placed at the trial were, first, that the bond and mortgage did not constitute a part of the estate of Gilbert W. Bowne, deceased; second, that the plaintiff did not have the legal title to them, and third, a counterclaim for professional services,, rendered by the defendant, Philip Y. R. Stanton, to Beveridge and Duryea, executors and trustees as aforesaid. The court excluded testimony to support the alleged counterclaim, directed judgment, for the amount of the mortgage and interest, and stayed proceedings thereunder for six months in order to allow the defendant, P. Y. R. Stanton, to bring his suit directly for the recovery of the value of these services. Prom this judgment the defendants,, Stanton, appeal to this court.
    
      P. V. P. Ssanton, for app’lts; Edward W Sheldon, for resp’t.
   Pratt, J.

The defense of the statute of limitations must prevail unless the testimony of George P. Beveridge as to the date of the last payment on the bond is sufficient to take the case out of the operation of the statute. We do not think it should be allowed that effect.

The cross-examination shows the witness had no present memory of the transaction. He infers that the payment was made at the date recited on the writing, but he does not claim any lcnowledgeon the subject. He does not remember receiving the money, and frankly says that if his father had told him to make the endorsement he would have done so, in reliance upon the order. ■

A change of thirteen days in the alleged date of payment would complete the twenty years required for the bar of the statute. It. is entirely consistent with the evidence of the witness that the payment may have been made thirteen days before the endorsement, in which case the action is barred.

We think the evidence sufficient to establish payment.

It appeared that the principal defendant was employed by the executors to protect the estate during four years. They had the-right to employ counsel to defend litigations and to pay the counsel by a credit on the bond made by him then in their possession.

The proof of his services, coupled with the evidence that after he rendered them no demand was made for payment of the bond, and no attempt made to foreclose the mortgage, is strong evidence that they were regarded as applied upon the bend.

To hold otherwise would be to impute neglect and misconduct to the executors, for which we find no warrant in the evidence.

The value of the services thus rendered was not allowed to be shown. That, we think, was error. If it equalled or exceeded the amount of the bond, it would be cogent evidence of payment.

Judgment reversed and new trial ordered.

Barnard, P. J., and Dykman, J., concur.  