
    George W. Eighme, Resp’t, v. Mary S. Strong, et al., Executrix, etc., of John C. Strong, Deceased, App'lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1888.)
    
    1. Special proceedings—Decedent’s estate—Disputed claim.
    A reference under the statute of a disputed claim presented against the estate of a deceased person is a special proceeding.
    2. New trials—Motions for—Code Civ. Pro § 1002 not applicable to SPECIAL PROCEEDINGS.
    The provisions of Code Civil Procedure § 1002 as to new trials has reference to motions in actions and has no application to special proceedings.
    3. New trials—Judgment on a disputed claim against the estate of a DECEASED PERSON—WHEN MOTION FOR NEW TRIAL MAY BE MADE.
    The statute (7th ed.), Revised Statutes, pp. 2299 and 2300 §§ 36, 37, give-to the court the power to set aside the report of referees and to appoint others and also to confirm the report and order judgment accordingly. It is the usual practice for the defeated party to move upon a case containing exceptions for anew trial at the same time that a motion is made for confirmation of the report. But a motion for a new trial upon, a case and exceptions may be made after the referee’s report has been confirmed.
    4. Evidence—Presumptions — Promissory note — Presumption as to INDEBTEDNESS OF PAYEE AND MAKER.
    The giving of a promissory note is presumptive evidence that the payee-was not at that time indebted to the maker and that all the demands between the parties were set; led at the date of the note and that it was given, for the balance due.
    Appeal from an order of the Erie special term denying motion for a new trial made on case and exceptions.
    
      M. H. Southworth, for resp’t; James C. Strong, for app’lts.
   Haight, J.

This was a reference under the statute to determine a disputed claim presented against the estate of John C. Strong, deceased. The referee found in favor of the plaintiff and thereupon a motion was made at the Niagara special term for confirmation of the referee’s report and for judgment, which motion was granted. Thereafter the defendant caused a case containing exceptions to be made and settled and then moved at the Erie special term upon such case and exceptions for a new trial, which was denied and from that order this appeal was taken.

It is now claimed that a motion for new trial could not be made upon case and exceptions after the referee’s report had been confirmed; and the cases of Denise v. Denise (2 N. Y. State Rep., 175), and Hatch v. Stewart (5 N. Y. State Rep., 180), are relied upon to sustain such claim. Nothing however, of the kind was held in those cases.

In the case of Denise v. Denise the question was whether the special term had power to review the report of a referee upon an alleged error in a finding of fact or ruling upon the law under section 1002 of the Code of Civil Procedure; and we held that a disputed claim presented against the estate of a deceased person under the statute was a special proceeding; (Roe v. Boyle, 81 N. Y., 305) and that motions for new trial provided for by section 1002 of the Code had reference to motions in actions and that the section had no application to special proceedings; that appeals could not be taken from the judgment under section 1346 of the Code, but must be taken under sections 1356 and 1357 of the Code; and the case of Young v. Cuddy (23 Hun, 249), was only criticised in so far as it held that an appeal in special proceedings of this character could be taken from the judgment under section 1346 of the Code. The case of Hatch v. Stewart was to the same effect, and nothing in either case holds that a motion for new trial cannot be made upon a case containing exceptions in a special proceeding of this character.

The statute provides that “ if the executor or administrator doubt the justice of any claim so presented he may enter into an agreement in writing, with the claimant to refer the matter in controversy to three disinterested persons or to a disinterested person to be approved by the surrogate, and, upon filing such claim and approval of the surrogate in the office of the clerk of the supreme court, in the county in -which the parties or either of them reside, a rule shall be entered by such clerk, either in vacation or term, referring the matter in controversy to the person or persons so selected. The referees shall thereupon proceed to hear and determine the matter and make their report thereon to the court in which the rule for their appointment shall have been entered. * * * And the court may set aside the report of the referees or appoint others in their places, and may confirm such report and adjudge costs as in actions against executors; and the judgment of the court thereupon shall be valid and effectual in all respects, as if the same had been rendered in a suit commenced by the ordinary process.” Seventh Ed. R. S., 2299, 2300, §§ 36, 37.

It will be observed that the statute gives to the court the power to set aside the report of the referees and to appoint others in their places, as well as the power to confirm the report and order judgment accordingly. Whilst the power is given by the statute, the practice is not prescribed. That has been left for the determination of the courts. It is the customary and usual practice' for ,the prevailing party to move at special term for a confirmation of the report. The motion beng based upon the report, the only questions brought up for review are the regularity of the proceedings, and whether the conclusions of law are sustained by the findings of fact appearing in the report. The rulings made upon the hearing, in the admission and rejection of evidence and questions as to whether the evidence sustains and justifies the findings of fact, can only be brought up upon a case containing exceptions. It is the usual and customary practice for the defeated party to move upon case containing exceptions for a new trial, at the same time that the motion is made for a confirmation of the referee’s report, so as to have all of the questions determined in the one motion, and this is doubtless the better practice. But we think, the motion for new trial upon case and' exceptions, may be made after the referee’s report has been confirmed. Such has been the approved practice of our court, and we see no reason why it should be changed. Somerville v. Crook, 9 Hun, 664; Young v. Cuddy, 24 id., 249; Schreyer v. Holborrow, 26 id., 468.

We are thus brought to the consideration of the case upon the merits. It appears that the plaintiff is the assignee of John Eighme of the claim in controversy, and that on or about the 9th day of May, 1862, John C. Strong and John Eighme, both of whom are now deceased, entered into a written agreement, under their hands and seals, by the terms of which John Eighme agreed to cause to be conveyed to John C. Strong and Maria Eighme, the wife of John Eighme, by quit claim deed "of James F. Eighme and wife, lots 27, 19 and 12, in the town of Bucktooth, Cattaraugus county; that the parties were to pay off and discharge certain claims against the lands and perfect the title thereto and, when the title was perfected, the first income and receipts from the rent and sale of the land or sales or use of timber thereon was to be applied to the payment of a sum of money, amounting to about $633, which had been advanced by Eighme upon certain claims; that for such payments Eighme was not, nor was the property, to be indebted to Strong; that Strong was not to be personally bound to the payments, but the first income from the property was to pay the same. The intention of the parties was to the effect that when the title was perfected, Strong and Maria Eighme were to own the property in fee, share and share alike. Subsequently, and on the 2d day of August, 1865, John Eighme caused to be conveyed to John C. Strong the undivided one-third of the lands mentioned in the agreement. The deed was executed by the James F. Eighme mentioned in the agreement with others. The deed was delivered to Strong by John Eighme on the 2d -day of August, 1865, together with a promissory note for the payment of about $300. The note was signed by John Eighme and by his brother, James F. Eighme, and the deed and note were received and accepted by Strong in full performance and satisfaction on the part of John Eighme of his agreement to convey an undivided one-half of the lands. The assignment to the plaintiff of the agreement of May 9, 1862, was made on the 8th day of August, 1865, six: days after the conveyance to Strong of one-third of the lands embraced in the contract. On the 21st day of October, 1865, Strong sold and conveyed his undivided third of the lands back to James F. Eighme for the sum of $2,000, and thereafter and on the 20th day of October, 1873, the plaintiff demanded of Strong the payment of the $633 provided for in the contract of May 9, 1862, which was refused, Strong, by his letter written to the plaintiff a few days thereafter, denying that he owed any sum whatever and claiming that it had been settled long ago. Strong died on the 5th day of July, 1879, at Buffalo, N. Y., being an inhabitant of Erie county; and this claim was presented to his executrix on the 8th day of June, 1881.

It will be observed that this claim was over nineteen years old at the time it was presented to the executrix; that it was presented nearly eight years after demand was made for its payment upon Strong and by him refused; that he lived six years thereafter and no action was brought against him in his life-time to recover it. These circumstances have caused us to scrutinize the evidence with some care for the purpose of determining whether it is a just and valid claim. James C. Strong, the brother of the deceased, testified that he was his law co-partner and that the deceased had in his possession in his life-time a release from all claim and liability upon the contract of May 9, 1862, bearing date August 2, 1865. James F. Eighme testified that he was a brother of John Eighme, and was with him on that day and that no such release was executed.

This raised a conflict upon the question of the existence of such a release and the referee having found the fact in favor of the claimant, he being personally present, seeing and hearing the witnesses testify, his finding must be con-elusive upon this court upon that question. But it appears that James F. Eighme held the title to the lands embraced in the contract; that the agreement was that John Eighme was to cause James F. Eighme and wife to convey the land in question; that the lands were to be conveyed to Strong and Maria Eighme, each an undivided one-half interest;, that James F. Eighme thereafter refused to convey one-half to Strong and would only convey one-third. John. Eighme was, therefore, unable to complete the contract on his part and the subsequent arrangement in 1865 was made by which Strong accepted a conveyance of one-third and a promissory note signed by John and his brother James F. Eighme for about three hundred dollars; that three months thereafter James F. Eighme purchased back from Strong the undivided one-third of the lands conveyed to him for the sum of $2,000 thus indicating that he considered the entire farm worth $6,000.

A serious question is presented as to the construction that should be placed upon the contract. The appellant claiming that Strong was not to pay the entire sum of $633, but that that sum was to be paid out of the proceeds of the lands, and Strong having received conveyance of but one-third, could be charged with but that proportion of the amount. But we shall not stop to determine this question,, but for the purpose of this case assume that the entire sum was, by the terms of the contract, to be paid out of Strong’s portion of the real estate. What then was the effect of the agreement of August 2, 1865? John Eighme not only caused a deed of an undivided one-third to be delivered to Strong, but also gave him his promissory note for about three hundred dollars. If Strong was still owing him $633 upon the contract, why did he give Strong his promissory note for three hundred dollars or thereabouts ?’ The evidence given upon the trial fails to explain this circumstance further than to show that the three hundred dollar note was given to make up the difference between the one-third conveyed to Strong and the one-half which was to be conveyed to him by the terms of the agreement.

But it will be seen that an undivided one-half of the farm was worth $3,000 if the whole was worth $6,000, and that the $300 note given would not make up for that difference. But if there was included the $633 owing to Eighme upon the contract, that with the $300 note, or about $300, as it is described in the evidence, would make up the additional $1,000 or thereabouts. We are thus brought to consider the effect of the giving of the $300 note of Eighme to Strong. It is well settled that the giving of a promissory note is presumptive evidence that the payee was not at that time indebted to the maker, and that where the maker, after he had paid the note, sued the executors of the payee for a debt on simple contract existing when the note was made, that the presumption of law was that all the demands between the parties were settled at the date of the note and that it was given for the balance due. De Freest v. Bloomingdale, 5 Den., 304; Gould v. Chase,16 Johns., 226; Sherman v. McIntyre, 7 Hun, 592; O’Dell v. Diehl, 12 N. Y. Week. Dig., 185; Late v. Tysen, 6 N. Y., 461; Sperry v. Miller, 16 id., 407-414; Sprague v. Hosmer, 82 id., 466-470.

The presumption raised by the giving of the note, together with the inference .that may properly be drawn from the fact that it did not make up the difference between the value of an undivided one-half and an undivided one-third of the lands in the amount of the claim presented under the agreement, leads us to conclude that the claim under the agreement was then settled and discharged.

The order should therefore be reversed, and the motion to set aside the referee’s report and for a new trial before another referee granted, costs to abide the final award of costs.

Barker, P. J., Bradley and Dwight, JJ., concur.  