Edwards v. Campbell , 1856 N.Y. App. Div. LEXIS 102 ( 1856 )

By the Court, Welles, J.

We incline to the opinion that the transaction proved, of the payee of the note, Mrs. Brotsman, delivering the note to her sister to hand to the defendant in payment or on account of his claims for boarding and taking care of her, was a valid cancellation of the note. If the note had been against another person, it would have been a good transfer of it to her brother, the defendant.

But independently of that view, we think the plaintiff failed to show a title in himself to the note. If it was not in judgment of law canceled, it remained the property of Mrs. Brotsman at her death, and would go to her executor or administrator to be administered according to law as the property of Mrs. Brotsman. No one but her legal representative could transfer it to the plaintiff or any other person. It does not appear that any one has taken out letters of administration upon her estate, and therefore no presumption can be indulged that it has been transferred legally to the plaintiff.

[Monroe General Term, December 1, 1856.

The judgment of the county court and that of the justice should be reversed.

T. R. Strong, Welles and Smith, Justices.]