
    Bertram L. Marks, as Ancillary Executor of John B. Morgan, Deceased, Respondent, v. L. Laflin Kellogg, as Executor of George H. Morgan, Deceased, Appellant.
    
      Marks v. Kellogg, 170 App. Div. 464, affirmed.
    (Argued January 24, 1917;
    decided February 9, 1917.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 16, 1915, affirming a judgment in favor of plaintiff entered upon the report of a referee. The complaint alleged that George H. Morgan, defendant’s testator, died on April 28, 1911, leaving a last will and testament and three codicils thereto, which were duly admitted to probate on May 15, 1911, and on said date letters testamentary were duly issued to the defendant; that in and by said will and codicils a legacy of $75,000 was made to John B. Morgan, plaintiff’s testator; that John B. Morgan died on January 13, 1912, at the city of Paris, and on June 13, 1912, ancillary letters testamentary on his will were duly issued to the plaintiff; that the amount of said legacy was duly demanded and payment refused. The defendant’s answer, after setting forth certain admissions and denials, sets up by way of counterclaim an alleged indebtedness of plaintiff’s testator to defendant’s testator consisting of two promissory notes of $5,000 and $2,000 respectively, and various other sums as loans and advances made by the defendant’s testator to the plaintiff’s testator amounting in all to the sum of $41,900 and interest, which amount if allowed in full would have wiped out plaintiff’s claim. Plaintiff’s reply, in addition to the denials, contained a distinct defense of payment.
    
      Abram J. Rose and William K. Hartpence for appellant.
    
      Louis Lowenstein for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: HiScook, Oh. J., Chase, Collin, Cuddeback, Hogan, Cardozo and Crane, JJ.  