
    Charles T. Redfield, Resp’t, v. Charles W. Stett, as Ex’r, etc., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1886.)
    
    Evidence—When incompetent—Code Civ. Pro., § 829.
    An action was brought against an executor on a note given by the testator, which was barred unless interest was paid as indorsed thereon. Held, that plaintiff was incompetent to testify to the indorsement, because if it represented a real payment it was a personal transaction with the deceased, and if not it was a mere declaration in his own favor. Dykman, J., dissenting.
    Appeal from a judgment entered upon a verdict rendered in favor of plaintiff at the Orange county circuit, and from an order denying a motion for a new trial as against the evidence and on the judge’s minutes.
    
      O’Neill & Bush, for Resp’t; J. Alexander Stitt, for App’lt.
   Barhard, P. J.

On the 25th of September, 1875, the deceased testator gave his note for $500 to the plaintiff. The note had no term of credit. When the testator died, in 1885, the note was barred by the statute of limitations, unless a certain receipt of $60, interest on it, renewed it. This endorsement was made by the plaintiff, April 6, 1880. Upon all the evidence as taken, the verdict in favor of the note is against the weight of the evidence. On the day of the date of this endorsement the deceased paid to the plaintiff seventeen hundred dollars, and took a receipt, “including all accounts in full, excepting the last year, that is 1879.” Two witnesses testify to conversation with the plaintiff after the date of the receipt in which he acknowledged the settlement. The large sum paid supports these witnesses. On the other hand there is a witness whose testimony is confused and uncertain, to the effect that the deceased had paid the interest in 1880, and that the note was still outstanding. ‘6 He said that Mr. Eedfield held two notes; the Jacob Bull note and a note of $500 against him, and that he had paid the interest up until April, some time the 1st of April, 1880.”

Q. How did he fix the day? Did he say anything about a receipt being given ?

A. Yes, the receipt he said he had got a receipt from Mr. Eedfield and two other notes from him.

Q. Two other notes ?

A. Yes, sir; of $500 each, and that Eedfield held two notes against him.

Stett held no note against Eedfield, and there is no payment of interest up to 1st of April, 1880, but as claimed, only one payment of interest in April 6, 1880.

The witness could not have understood the conversation with the deceased, and the receipt is the best evidence of a settlement. The plaintiff was improperly permitted to testify to the endorsement of interest on the note, April 6,1880. It was, if it represented a real payment, a personal transaction which excludes his evidence under section 829, Code.

If the payment was not in fact made, it was a mere declaration in his own favor. Holcomb v. Holcomb, 95 N. Y., 316; Strong v. Dam, 55 Barb., 337.

The judgment should therefore be reversed and a new trial granted, costs to abide event, as well as for the legal error as for the fact that the evidence does not support the verdict upon the whole case.

Pratt, J., concurs; Dykman, J., dissents.

Dykman, J.

(dissenting)—This action was brought upon two promissory notes, but the complaint was dismissed as to the first cause of action stated in the complaint, and there is no appeal by the plaintiff. There was an endorsement of a payment upon the second note to save it from the operation of the statute of limitations, and the plaintiff was permitted to testify to the endorsement and signature of the note. The action was against an executor, and he objected to that testimony as involving a personal transaction between the witness and the deceased.

The proof made by the testimony of the plaintiff does not necessarily imply a personal transaction with the deceased maker of the note, because it may be true without the involution of any personal interview or communication, and its admission was not erroneous. Simons v. Havens, 101 N. Y., 427.

Besides that there was testimony given on the part of the plaintiff by another witness which tended to prove the execution of the note and the delivery of the payment, and the verdict may well stand upon the proof.

The plaintiff gave the deceased man a receipt for $1,700, including all accounts in full except the year 1879, and that bore date April 6, 1878, the same date as the endorsement of the sixty dollars upon the note in question for interest.

The proof of that receipt raised a presumption in favor of the defense which the plaintiff endeavored to overthrow by proof tending to establish a recognition of the note by the deceased as outstanding paper subsequent to the date of the receipt.

All the proof was submitted to the jury with proper instruction, and the finding was in favor of the plaintiff.

The verdict is well sustained by, the testimony, and we find no error either on the trial or in the charge.

The judgment should be affirmed, with costs.  