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answer, while admitting the sale and delivery by the plaintiff's assignor of certain merchandise, alleges, in substance, that there were other transactions between the plaintiff's assignor and the defendant, and that there was owing from the plaintiff's assignor to the defendant the sum of $1,505.20, which sum was due prior to the time of the making of the assignment alleged in the complaint. The case was referred to a referee, who reported in favor of the plaintiff, and that the defendant "failed to establish any set-off against the plaintiff's cause of action," and awarded to the plaintiff judgment for the amount claimed and interest.

Upon the trial the plaintiff offered in evidence the general assignment for the benefit of creditors to the plaintiff, and called a witness who had charge of the New York office, where the goods in question were purchased. He testified, without objection, that all payments that were made to the New York office went through his hands, and were deposited by him in the bank, and that the defendant had never paid for these goods, to his knowledge. The assignee was called, and testified, without objection, that no money was paid to him for these goods to recover for which this action was brought. The plaintiff then rested. The defendant moved to dismiss the complaint, upon the ground that the plaintiff had not proved that the account set forth in the complaint was not paid.

I think there was evidence received without objection to sustain the finding of the referee that the account was not paid, and therefore it is unnecessary to determine in this action whether or not it was necessary to allege in the complaint and to prove upon the trial that the amount due had not been paid. The action is to recover for goods sold and delivered, and it is to enforce an implied promise of the defendant to pay for the goods. In such an action it has always been held that payment is an affirmative defense, and must be alleged and proved by the defendant. If to establish a defense of payment there must be an affirmative allegation of such a defense, and affirmative proof, it is a little difficult to see upon what principle the plaintiff can be required to allege nonpayment as part of this cause of action and prove it upon the trial. The cases are numerous and uniform that where the action is to enforce a promise to pay, either express or implied, no allegation or proof of nonpayment is necessary.

The defendant relies upon the case of Lent v. Railway Co., 130 N. Y. 504, 29 N. E. 988. There it was held that, in an action for a breach of contract, the breach must be alleged and proved. That was a case to recover the value of property sought to be taken by the defendant, a railroad corporation, under the right of eminent domain. Payment was sought to be enforced under the provisions of the statute authorizing the commencement of the proceeding, and it was held that an allegation of nonpayment was essential. An entirely different question is presented in an action of the character now under consideration, and we are referred to several cases which hold that such an allegation is not necessary. See Lerche v. Brasher, 104 N. Y. 157, 10 N. E. 58; Newcombe v. Fox, 1 App. Div. 389, 37 N. Y. Supp. 294, affirmed in 154 N. Y. 754, 49 N. Ê. 1101.

It is not necessary to determine, however, which rule should be applied here, as there was evidence sufficient to justify the referee in finding that the account had not been paid.

The only other question is as to whether the referee's finding that the defendant had failed to establish any set-off against the plaintiff's cause of action was sustained by the evidence. One Lewinsohn was called for the defendant, and testified that he was cashier and bookkeeper of the defendant, and had been such since October 21, 1881; that the plaintiff's assignor did work for the defendant as silk thrower, and that in the last few years of the plaintiff's assignor's business they sold to the defendant some ribbons; that he made payments on behalf of the defendant to the plaintiff's assignor direct to New London, where the plaintiff's assignor had a branch of their business, or to Mr. Dayton Atwood, who was a member of the firm, when he came to the New York office. The defendant then offered in evidence an account dated October 1, 1899, which purported to be an account between the defendant and the plaintiff's assignor to that date, and which showed a balance due to the plaintiff's assignor of $1,147.46. The witness was then allowed to read from the books of the defendant's firm various entries of charges against the defendant for silk throwing, and also various charges on account of the purchase of ribbons from the plaintiff's assignor. The witness then testified as to various cash payments made by the defendant to the plaintiff. Several checks of the defendant were produced, payable to the plaintiff's assignor, and various notes were also produced, by which the defendant promised to pay to the plaintiff's assignor various sums of money, and which were indorsed as paid. The testimony in regard to these checks and notes is quite indefinite. It would seem that notes were exchanged between these parties for their mutual accommodation, and it is impossible to tell from this evidence just what notes were given in payment of indebtedness, and what notes were given for accommodation; and the witness appears to have testified almost entirely from the books of the defendant, which were certainly not evidence against the plaintiff. Although the witness testifies that he constantly received from the plaintiff's assignor statements showing goods paid for up to that time, they are not produced, nor are there any bills produced, which would be competent evidence against the plaintiff's assignor. The defendant did produce what seem to be several statements of account that were rendered by the plaintiff's assignor to the defendant, one dated February 20, 1891, which seems to include all accounts between the parties from August, 1889, to that date; one dated January 5, 1892, which seems to cover a period from January 1, 1891, to the end of October, 1891, and dated January 5, 1892, covering the period from November 4, 1891, to January 5, 1892; but there is nothing to show the state of the accounts between these parties from that date to the date of the assignment, in 1898. From the condition of this evidence it is impossible to arrive at any conclusion as to the condition of the accounts between these parties, or to find that there was any balance due from the plaintiff's assignor to the defendant on these general transactions. No statement of account is presented. No

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distinction is shown between the notes that were given for accommodation and the notes actually representing money paid, or checks that were exchanged or that represented actual payments. whole condition is so obscure and involved that we think the referee was quite justified in saying that the set-off alleged in the answer had not been proved.

It was objected that there was no proof of the assignment. It will be seen upon reference to the evidence in this case that the record shows that the plaintiff offered in evidence the original general assignment to Hitchings, dated August 31, 1893, and recorded the same day in the county clerk's office, and also the assignee's bond and schedules; and the only objection was as to the inventory and schedule, no objection whatever being taken to the receipt in evidence of the assignment and bond as approved. The record further shows that Hitchings testified to the fact of the assignment without objection, which seems to dispose of the claim that the record contains no evidence of an assignment to the plaintiff.

There are several objections to rulings on evidence to which exceptions were taken, but I do not think there was any error committed which would justify us in setting aside the report of the referee.

Upon the whole case I think the judgment should be affirmed, with costs. All concur.

(65 App. Div. 338.)

WASHINGTON v. BANK FOR SAVINGS IN CITY OF NEW YORK. (Supreme Court, Appellate Division, First Department. November 15, 1901.) 1 BANK DEPOSITS-TRUSTS FOR CHILDREN-LACK OF ISSUE-FAILURE OF TRUST -RECOVERY BY ADMINISTRATOR-SUFFICIENCY OF EVIDENCE.

In a suit by an administrator to recover certain deposits made with a bank in his intestate's name "in trust for son T.," and "in trust for son J.," the evidence tended to show that plaintiff's intestate had lived in the same house for 28 years, and that at time of her death she was 75 or 80 years old. The two bank books introduced by the plaintiff contained statements, purporting to have been made by the intestate, that in January, 1882, T. was 9 years old, and in August, 1883, J. was 11. The intestate died in 1893. No witnesses were produced who had ever seen these or any children of the intestate, and her friends and neighbors testified that she had frequently declared to them that she never had any children. Held, that the evidence was sufficient to justify the jury in finding that plaintiff's intestate never had any children named T. and J.. thus entitling the administrator to recover the deposits as having been made for his intestate's own benefit.

2. PEDIGREE-LACK OF ISSUE-HEARSAY-ADMISSIBILITY.

The intestate's declarations that she had never had any children were admissible; hearsay evidence being equally admissible to establish lack of issue as to establish the fact of issue, or any other question of pedigree.

Appeal from trial term.

Action by Walter S. Washington, as ancillary administrator, etc., of Margaret Hunter, deceased, against the Bank for Savings in the City of New York. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, O'BRIEN, and INGRAHÁM, JJ.

W. W. Thompson, for appellant.
Louis Marshall, for respondent.

MCLAUGHLIN, J. In February, 1895, Margaret Hunter, whose maiden name was Margaret Brown, died intestate. For many years prior to and at the time of her death she resided in the same house in Newark, in the state of New Jersey. After her death there were found among her papers several bank books, representing deposits in various savings banks, most of them in the city of New York. These books represented accounts kept in the names of various persons:

"Margaret Brown; Margaret Hunter; Margaret Hunter in trust for son Thomas; Margaret Hunter in trust for son John; Margaret Hunter in trust for Thomas Hunter; Margaret Brown for niece Margaret Hunter; Margaret Brown for Margaret Hunter; Margaret Hunter in trust for John Smith; Margaret Hunter in trust for Margaret Smith."

There were three books representing accounts in the defendant bank, one in the name of Margaret Brown, one in the name of Margaret Hunter in trust for son Thomas, and a third in the name of Margaret Hunter in trust for son John. After her death the plaintiff was appointed ancillary administrator, and as such he demanded. from the defendant the moneys represented by the three books issued by it. The defendant denied his right to the moneys represented by such books, and thereupon this action was brought to recover the same. Subsequent to the commencement of the action the defendant paid to the plaintiff the amount called for by the book issued in the name of Margaret Brown, but refused to pay the amounts called for by the other two books, and the subject-matter of this controversy relates to the plaintiff's right to recover such sums. The accounts represented by these two books were opened by Margaret Hunter personally. She deposited with the defendant all of the moneys represented or called for by them. The first account, "Margaret Hunter in trust for son Thomas," was opened and the book issued on the 3d of January, 1882. According to a statement contained in the book, she then declared that the son Thomas was 9 years of age. The other one-"Margaret Hunter in trust for son John"-was opened and the book issued to her on the 22d of August, 1883; and she then declared, according to a statement contained in the book, that John was II years of age. If at the time Margaret Hunter deposited with the defendant the moneys. represented by the two books in question she had no son John or Thomas, then there can be no doubt but that the plaintiff is entitled, as her representative, to recover from the defendant the amounts called for by them, inasmuch as in that event the trusts attempted to be erected were exclusively for her own benefit. Cunningham v. Davenport, 147 N. Y. 43, 41 N. E. 412, 32 L. R. A. 373, 49 Am. St. Rep. 641; Haux v. Savings Inst., 2 App. Div. 165, 37 N. Y. Supp. 917; Id., 154 N. Y. 736, 49 N. E. 1097; In re Mueller, 15 App. Div. 67, 44 N. Y. Supp. 280. If, however, she did not have sons at that

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time, but subsequently had sons by those names, and such sons were living at the time of her death, a valid trust was created for the benefit of each, and the plaintiff is not entitled to recover. The question really presented, therefore, was whether she did, at the time the deposits were made and at the time of her death, have a son Thomas and a son John; and this was the theory upon which the action was tried and submitted to the jury. The evidence adduced upon the trial tended to establish that she had lived in the same house in Newark for nearly or quite 28 years, and that at the time of her death she was between 75 and. 80 years old. Therefore, if she had sons Thomas and John, and their ages were correctly stated in the books issued by the defendant,-and this was the only evidence on that subject,-they must have been born within five or six months of each other, about 1872 or 1873, and at a time when she lived in the house where she died. No witnesses were produced who had ever seen those children, or either of them, or in fact any children belonging to her, and no evidence whatever was offered to the effect that she had ever had children. The fact that none of the deceased's friends or neighbors were produced who had any knowledge that she had children, and that she must have been upward of 50 years of age when they were born, raises a strong presumption that she never had children, and that these names were used by her for a purpose known only to herself. It is true, there is no conclusive presumption of law that a woman upward of 50 years of age may not have children; but nevertheless there is a strong probability, which almost ripens into a legal conclusion, that she will not, and which has many times been acted upon by the courts. Thus, the English courts have frequently acted upon that probability, and made distributions of money. Lyddon v. Ellison, 19 Beav. 565; Fraser v. Fraser, Jac. 586; In re Widdow's Trusts, L. R. 11 Eq. 408; In re Millner's Estate, L. R. 14 Eq. 245. And in Edwards v. Tuck, 23 Beav. 271, distribution of an estate was made upon the presumption that a woman of 58 would not have children, and the right to distribute depended upon the fact that she would not.

But in addition to the probability that a woman of the age of Margaret Hunter at the time the sons Thomas and John are alleged to have been born would not have children, we have not only the evidence of her friends and neighbors that they had never seen any children of hers, and had no knowledge that she had ever had any, but also the further fact that she had frequently declared to such friends and neighbors that she had never had any children. It is said that her declarations thus made are inadmissible; that this raises the principal question upon which it is urged the judgment should be reversed. These declarations, it is said, were hearsay evidence. But hearsay evidence is admissible for the purpose of establishing pedigree. I Greenl. Ev. §§ 103, 104; Chase, Steph. Ev. art. 31, p. 103; People v. Fulton Fire Ins. Co., 25 Wend. 209; Eisenlord v. Clum, 126 N. Y. 552, 27 N. E. 1024, 12 L. R. A. 836, It has never been questioned in this state, so far as we are aware, since the decision of Ross v. Cooley, 8 Johns. 128, but that, in case of pedigree, hearsay evidence, declarations of persons who from their situation

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