App. Div.] First Department, April, 1910.' PATRICK CORLESS, Respondent, v. WILLIAM T. CARLISLE, as Ancillary Executor, etc., of BRYAN NEVINS, Deceased, Appellant. First Department, April 8, 1910. Decedent's estate - failure to establish claim against decedent — evidence-books kept by plaintiff — admissions of testator — section 829, Code Civil Procedure. Action against an executor under section 2718 of the Code of Civil Procedure to recover moneys alleged to be due from the testator at the time of his death. Evidence examined, and held, insufficient to show that payments of money by the plaintiff to the testator established any indebtedness of the latter. In such action books kept by the plaintiff in which at certain times he had been seen to enter payments made by him to the testator are not admissible in evidence for any purpose. Mere proof that the testator shortly before his death said that he owed money to the plaintiff, without identifying the debt, does not establish the claim. Although a claimant against an estate cannot testify to personal transactions with the decedent contrary to section 829 of the Code of Civil Procedure, his inability to produce competent proof does not authorize a judgment upon insufficient proof. APPEAL by the defendant, William T. Carlisle, as ancillary executor, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of December, 1909, upon the report of a referee. Robert A. B. Dayton, for the appellant. John H. Regan, for the respondent. SCOTT, J.: This is an appeal by defendant from a judgment entered upon the report of a referee in a proceeding under section 2718 of the Code of Civil Procedure. The claim is for a sum of money alleged to be a balance of account due to plaintiff from the decedent at the time of his death. Both the claim and the evidence to support it are extremely vague, and it is nowhere disclosed what the precise relations between plaintiff and deceased were, or how plaintiff arrived at the particular sum which he claims. It appears that at some time late in First Department, April, 1910. [Vol. 137. the year 1994 the deceased bought a saloon at Sixty-seventh street and Columbus avenue in the city of New York, intending it for his brother, William F. Nevins. William, however, was ill at the time and unable to undertake the care of the saloon, and the deceased decided to put it in charge of plaintiff. All that the testimony shows about the transaction is that deceased said to plaintiff "I will put you in full; I will pay the bills," to which plaintiff replied: "If you will give me the money I will start the place." What this means is not explained. All that the conversation discloses is that deceased was to furnish the money, and plaintiff was to carry on the business. There is nothing to indicate, and certainly no presumption, that deceased intended to make a present to plaintiff, and the evidence above quoted is consistent with either one of two possible theories, viz., that defendant proposed to sell the place to plaintiff, or that he put plaintiff into the place to run the business for him. The evidence is that plaintiff paid money to deceased from time to time; that plaintiff cashed checks for other persons and that these checks found their way into decedent's bank account, and that deceased paid or assumed the bills for liquor purchased for the saloon run by plaintiff. All this evidence is consistent with either of the above theories as to the nature of the transaction, and under neither theory is it sufficient to show that the payment of money by plaintiff to the deceased created an indebtedness in favor of the former. The referee erroneously admitted in evidence an account book said to have been kept by plaintiff, in which at certain times he was seen to enter payments made to deceased. The referee expressly stated that the book was not received as evidence of its contents, but merely to corroborate a witness who said he saw entries made therein. The book was not competent for any purpose and should not have been received. The only other piece of evidence at all bearing upon the claim is that deceased was heard to say, a few months before his death, when he was preparing to go abroad, that plaintiff had money coming to him, and that he (deceased) would give it to him. This furnishes no foundation for the allowance of any particular sum, but at the most indicates that at some time the deceased owed plaintiff something. Of course, the provisions of section 829 First Department, April, 1910. App. Div.] of the Code of Civil Procedure interpose obstacles to the proof by a claimant in such a case as this, but the inability to produce competent proof does not authorize the allowance of a claim upon insufficient proof as was done in this case. The judgment appealed from must be reversed and a new trial granted before another referee, with costs and disbursements to the appellant to abide the event. INGRAHAM, P. J., MCLAUGHLIN, CLARKE and DOWLING, JJ., concurred. Judgment reversed, new trial ordered before another referee, costs to appellant to abide event. Settle order on notice. JOHN A. PHILBRICK AND BROTHER, Plaintiff, v. THE IGNATZ FLORIO CO-OPERATIVE ASSOCIATION AMONG CORLEONESI and Others, Defendants, Impleaded with JOHN J. DOWLING and THE TWELFTH WARD BANK OF THE CITY OF NEW YORK, Appellants, and ROBERT L. LESLIE and WILLIAM H. LESLIE, Respondents. First Department, April 8, 1910. Mechanic's lien-extension of lien where lienor is made defendant by other lienor- statute construed. Although by virtue of the statute a mechanic's lien is extended where the lienor is made party defendant in a suit to foreclose "another lien," even though a year has elapsed since the filing of his lien, and there has been no order continuing the same, such lien is not saved by reason of the fact that the lienor is made party defendant in an action to foreclose a mortgage on the lands recorded simultaneously with the lien. The words "another lien," as used in the statute, refer to another mechanic's lien, not to the lien of a mortgage. APPEAL by the defendants, John J. Dowling and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of February, 1910. Maxwell C. Katz, for the appellants. Noah A. Stancliffe, for the respondents. Scort, J.: First Department, April, 1910. [Vol. 137. This is an appeal from an order denying a motion to confirm a referee's report in surplus money proceedings. The contest is between lienors under a mechanic's lien and the holder of a mortgage. Both were filed on the same day, the lien anticipating the mortgage by a few minutes. The question is whether or not the lien was kept alive. The statute applicable is section 16 of chapter 418 of the Laws of 1897, now section 17 of chapter 33 of the Consolidated Laws of 1909, which reads as follows: "No lien specified in this article shall be a lien for a longer period than one year after the notice of lien has been filed, unless within that time an action is commenced to foreclose the lien, and a notice of the pendency of such action, whether in a court of record or in a court not of record, is filed with the county clerk of the county in which the notice of lien is filed, containing the names of the parties to the action, the object of the action, a brief description of the real property affected thereby, and the time of filing the notice of lien; or unless an order be granted within one year from the filing of such notice by a court of record continuing such lien, and such lien shall be redocketed as of the date of granting such order, and a statement made that such lien is continued by virtue of such order. No lien shall be continued by such order for more than one year from the granting thereof, but a new order and entry may be made in each successive year. If a lienor is made a party defendant in an action to enforce another lien, and the plaintiff or such defendant has filed a notice of the pendency of the action within the time prescribed in this section, the lien of such defendant is thereby continued. Such action shall be deemed an action to enforce the lien of such defendant lienor. The failure to file a notice of pendency of action shall not abate the action as to any person liable for the payment of the debt specified in the notice of lien, and the action may be prosecuted to judgment against such person." The lien in question was filed on April 2, 1908, and it is conceded upon the record that no order was obtained extending it, and no action brought to foreclose it within a year after its filing and no action brought to foreclose any other mechanic's lien to which the holders of this lien were made parties defendant. The present action was to foreclose a mortgage and the lienors were made parties App. Div.] defendant and duly appeared. The action was begun in August, * * To the same effect was section 3402 of the Code of Civil Procedure. So, also, by section 2 of the Lien Law it is provided that "The term 'lienor,' when used in this chapter, means any person having a lien upon property by virtue of its provisions, and includes his successor in interest." We think that the clear meaning and intent of the statute is that the action to foreclose "another lien" which will keep alive a lien filed by a defendant to the action, is an action for the foreclosure of a lien created by the Lien Law, and not an action to foreclose a mortgage, although that, in a sense, is a lien upon the property. In opposition to this view we are referred to Danziger v. Simonson (116 N. Y. 329), upon which the court below relied. That case, however, is clearly distinguishable. That also was an action to |
