Strong v. Dean , 1869 N.Y. App. Div. LEXIS 99 ( 1869 )

By the Court, Tappen, J.

The defendant’s testator had certain moneyed transactions with the plaintiff, and the proofs show the following, viz: 1. The testator’s note, date May 16th, 1864, for $600, at twelve months, with interest, payable to the plaintiff or bearer. The action is brought on this note, which contains the following clause: “ and for better security, I assign to him a life insurance policy.” The note contains indorsements by the plaintiff of the receipt of interest to November 16, 1864, and August 16, 1865. The testator died in 1866. 2. An assignment by Dean and wife of a policy of life insurance, as security for the payment of that note. The assignment is also dated May 16,1864. 3. A paper signed By the plaintiff) dated July 17, 1865, in consideration of a mortgage for $600 received from Dean, dated July 1, 1865, “ exonerating Dean from all notes and papers that I hold against him, and from all notes that I have indorsed for him that are made payable at any bank or to any party, I hold myself responsible for the same.” 4. The mortgage referred to, for $600.

[Kings General Term, December 30, 1869.

There were various other note transactions, of small amounts, between the parties in the years 1864 and 1865.

The case was tried before three referees appointed by a surrogate’s order, under the statute in regard to contested claims against the estates of deceased persons. Two of the referees (laymen) found for the plaintiff, the other referee (of the legal profession) agreed with them as to the facts, but dissented from the conclusion that the testator was indebted upon the note-in question.

. The plaintiff’s testimony as to his transactions personally with the deceased was not admissible. The notes in respect to which he was testifying were made by the deceased to the order of, and indorsed by, the plaintiff, and were transactions had personally between them. (Code, § 399.) And.in 47 Barb. 586, it is said the test is, “ does the testimony tend to prove what the transaction was.”

The paper signed by the plaintiff, and offered on the trial by the defendant as a release of all notes and papers, operated ‘as a release, according to its terms, and extinguished the debt. (5 Duer, 294.) The burden is upon the plaintiff to overcome the effect of the release, which cannot be done by parol; and proof that there were other notes amounting in the aggregate to the sum of $600, the consideration named in the release, which were intended to be, and were, released, does not tend to explain the release, or to exclude from its operation the note in suit.

The note was past due when the release was given, (July, 1865.) The indorsement by the plaintiff, upon the note, of the receipt of interest in August, 1865, after the date of the release, and when the note was in the plaintiff’s hands, is not proof of any such payment of interest by the deceased.

The judgment should be reversed, and judgment ordered for the defendant.

J. F. Barnard, Gittert and. Tap-pen, Justices.]