
    JEREMIAH E. CARY, Plaintiff and Respondent, v. WILLIAM GOOD GREGORY, as Executor, &c., Defendant and Appellant.
    The rule is well-established that the contracts of executors, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, moving between the promisee, and the executors as promisors, are the personal contracts of the executors, auS. do not bind the estate (Austin 'o. Munro, 47 N. 7. 880; Ferrin v. Myiick, 41 IV. 7. 815).
    In the case at bar, the plaintiff seeks to recover judgment against the estate, for the amount of a note given by the defendant as executor to the plaintiff’s indorser,, and in order to succeed he was bound to prove that his cause of action arose upon a contract made by the testator in his lifetime and this he must do by proving :
    Befóse Freedmah, Yah Yorst and Speir, JJ.
    
      Decided October 31, 1874.
    1. The claim or debt of plaintiff’s indorser against the estate of the testator;
    2. That the original claim or debt was not extinguished by the acceptance of the note in question.
    3. That the plaintiff, by assignment, acquired title to said original claim to the extent of the note in question;
    Having failed in establishing the second and third points, or most certainly the last (having failed to prove an assignment from the original creditor of the testator, to him, of the original claim or debt, to the extent of the note transferred to him), he can not recover.
    The simple indorsement of the note in question from the original creditor to the plaintiff, is wholly insufficient to prove such assignment.
    Appeal from a judgment.
    Robert A. Gregory in his lifetime, was indebted to one Cyrenus Bloodgood in about the sum of one thousand five hundred dollars. He died October 1, 1868. His will was proved, and Sarah J. Gregory, his widow, on October 19, 1868, qualified as sole executrix.
    Thereafter, Cyrenus Bloodgood presented his claim to the executrix for payment, and on January 12, 1871, accepted from her in settlement of such claim a note made by John H. McCunn, for eight hundred dollars, and her own note, made and signed as executrix, and payable one year after date, for five hundred and nine dollars and thirty-three cents. At the same time Cyrenus Bloodgood executed and delivered to her a writing, stating that the notes were in full settlement, and payment of R. A. Gregory’s note for one thousand dollars, dated August 3, 1868, and also in full settlement and payment of all claims and demands' I have or may have against the estate of said Robert A. Gregory, deceased, or against the executrix thereof.”
    
      On December 7, 1871, the executrix was removed by the surrogate, and the defendant, William Good Gregory (who was also one of the executors named in the will of deceased) qualified as executor.
    Before the note for five hundred and nine dollars and thirty-three cents became due, it was indorsed and delivered by Oyrenus Bloodgood, to Morris S. Bloodgood. It was not paid at maturity.
    On August 2, 1872, the defendant gave to Morris S. Bloodgood two notes for the amount then due upon the note of five hundred and nine dollars and thirty-three cents. One of them was for eighty-seven dollars, and by the terms of it, the defendant as executor, and not personally, promised to "pay one year after date, to the order of Morris S. Bloodgood, the said sum of eighty-seven dollars. This note Morris S. Bloodgood indorsed to the plaintiff. It was not paid at maturity, and plaintiff commenced this action upon it.
    Upon the trial, the question was submitted to the jury, whether in reality the action was to recover for an indebtedness upon a cause of action which arose substantially in the lifetime.of the testator, or whether it was upon a cause of action that arose after the death of the testator; and the jury were instructed that if they found that the cause of action arose substantially in the lifetime of the testator, the plaintiff was entitled to recover the sum of eighty-seven dollars and interest.
    The jury found for the plaintiff. Judgment having been entered upon the verdict, the defendant appealed.
    
      James Flynn, attorney for appellant.
    
      J. E. Cary, attorney in person, for respondent.
   By the Court.—Freedman, J.

By the note in question, the defendant promised to pay solely as ex ecutor. He expressly stipulated against a personal liability. The plaintiff's claim stands, therefore, precisely as if Sarah J. Gregory had continued to be executrix, as if as such she had given the note for eighty-seven dollars, in part renewal of the note of five hundred and nine dollars and thirty-three cents, and the action had been brought against her as executrix;

As the rule is well settled that the contracts of. executors, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration moving between the. promisee and the executors as promisors, are the personal contracts of the executors, and do not bind the estate, notwithstanding the consideration moving from the promisee is such that the executors could properly have paid for the same from the assets, and been allowed for the expenditure in the settlement of their accounts (Austin v. Munro, 47 N. Y. 360 ; Ferrin v. Myrick, 41 Id. 315), the plaintiff, in order to succeed, was bound to show that his cause of action arose upon a contract made by the testator in his lifetime, and this he could only do by proving.

1. The claim of Cyrenus Bloodgood against Robert A. Gregory ;

2. That it was not extinguished by the acceptance of the notes : and

3. That he, the plaintiff, by assignment acquired title to such claim to the extent of at least eighty-seven dollars.

The first point may be deemed, for the purposes of this appeal, to have been sufficiently established.

As to the second, the receipt executed by Cyrenus Bloodgood to the executrix on January 12, 1871, if not as conclusive as its language, which is very strong, seems to make it, is, to say the least, strong evidence of an extingishment. Mo explanatory evidence was given to change its legal effect, or the legal effect of the transactions therein recited. True, Cyrenus Bloodgood testified that he took the note of five hundred and nine dollars and thirty-three cents from the executrix to hold the estate. But that is swearing to a mere conclusion. Even if it be assumed; however, that upon the whole • case a fair question of fact did present itself as to the extinguishment of the original cause of action, the plaintiff, in order to get to the jury at all, was still bound to prove an assignment by Cyrenus Bloodgood to Morris S. Bloodgood, and by the latter to himself, the plaintiff, of the original claim against the estate of Robert A. Gregory, deceased, to the extent of at least eighty-seven dollars. He seems to have been fully aware of the necessity of furnishing such proof, for at the commencement of the trial he obtained leave to amend his complaint by setting up such assignments, and the complaint was thus amended, and the answer was amended to deny the fact. The plaintiff rested, however, without giving any such proof. There is not a particle of evidence in the case from which the fact of such assignments can be deduced. The bare indorsement of the notes is wholly insufficient for such purpose. The court erred, therefore, in denying defendant’s motion for a nonsuit and in submitting the case to the jury against defendant’s exception.

The judgment should be reversed, and a new trial ordered, with costs to appellant, to abide the event.

Van Vorst and Speir, JJ., concurred.  