
    FITZMAHONEY v. CAULFIELD et al.
    (Supreme Court, General Term, Second Department.
    May 13, 1895.)
    Mortgages—Payment—Evidence.
    In an action to foreclose a mortgage in favor of plaintiff’s intestate It appeared that plaintiff found the bond and mortgage among intestate’s papers before she was appointed administratrix; that she called defendant’s attention thereto, to which defendant replied that the bond and mortgage had been paid, and that, if she examined intestate’s papers, she would find such to be the case; and that afterwards plaintiff delivered the bond and mortgage to defendant. Plaintiff denied that she said that she had found that the bond and mortgage were paid. Heidi, that it was error to dismiss the complaint, as the rule that possession by the mortgagor of the bond and mortgage is presumptive evidence of payment does not apply to such case.
    Appeal from special term, Westchester county.
    Action by Marie J. Fitzmahoney (formerly Marie J. Cody), as administratrix of the estate of Michael J. Cody, deceased, against George Caulfield and others, to foreclose a mortgage. The complaint was dismissed, and plaintiff appeals.
    Reversed.
    Argued before BROWN, P. J., and CULLEN, J.
    George Finck, for appellant.
    Thos. O’Callaghan, Jr., for respondents.
   CULLEN, J.

This is an appeal from a judgment of the special term in favor of the defendant. The action is to foreclose a mortgage ; the defense, payment. The bond and mortgage were found by the plaintiff in the papers of her intestate shortly after .his decease, and before her appointment as administratrix. She called the defendant’s attention to the fact that she had found these obligations. The defendant, according to his testimony, responded that the bond and mortgage had been paid, and, if plaintiff examined her husband’s papers, she would find that to be the case, and that after this conversation the plaintiff brought the bond and mortgage, and delivered them to him. The plaintiff conceded the surrender of the bond and mortgage, but denied that she said that she had found they were paid. This is substantially all the evidence to support the plea of payment.

We think the judgment below erroneous.. The doctrine that the possession of the bond and mortgage by the mortgagor is presumptive evidence of their payment can have no application to this case, for it is conceded that the bond and mortgage were in the possession of plaintiff’s intestate at the time of his death, and there is no claim that payment has been made since that time. The defense of payment, therefore, rests solely on the act of the plaintiff in surrendering the mortgage, and her alleged admission that she had found, from her husband’s papers, that it had been paid. Had the transaction between plaintiff and defendant occurred after the plaintiff had been appointed administratrix, it may be that it would either have operated as a discharge of the mortgage, or constituted sufficient evidence to uphold the finding of payment. Church v. Howard, 79 N. Y. 415. Yet there is some doubt whether she could have bound the beneficiaries other than herself. 1 Phil. Ev. (Cowen & Hill) p. 482. But at the time of this transaction the plaintiff was a mere meddler with the assets of the deceased. She had no right to interfere with them, otherwise than to preserve them, and she might never acquire such right. The delivery of the bond and mortgage to the defendant was simply a tort on her part. Her admission made at that time was inadmissible as evidence. To make the admission of an executor or administrator competent evidence, it must be made in the performance of the administration of the estate. Church v. Howard, supra. The rule seems settled that the declaration of a trustee before he came into the trust, or of an executor before he became such, is not admissible against him. 1 Phil. Ev. p. 483. If the widow alone was to receive the proceeds of a recovery in this action, it may be that she would be estopped from maintaining it, despite the fact that the settlement with defendant was made by her personally, and that she now sues in her representative capacity. But in this case there is not only the widow, but also' a minor child, of plaintiff’s intestate. It is possible that, if there are no creditors, any equity against the widow arising out of her settlement with the defendant may be considered upon a new trial. This, however, we do not now pass upon. The judgment appealed from should be reversed, and a new trial ordered; costs to abide event.  