De Freest v. Bloomingdale

5 Denio 304

• Court: New York Supreme Court
• Decided: May 15, 1848
• Status: Published

Opinion

By the Court, Beardsley, Ch. J.

As-the referee allowed the plaintiff for..more than seven years’ board of the widow De Freest, and there was no pretence of a right to recover for .such board after January, 1843, the time for which the allowance .was made must have commenced as early as 1836. This was some three years before the plaintiff gave his promissory note to the defendants’, testator for §100 and interest. It does not appear what this note,was given for, .and, unexplained, the giving of the note was prima facie evidence that nothing remained due to' the maker.of the note from the.person to whom it was delivered. This is .a. reasonable inference from, the fact of giving a note, and the principle applies with full force to this case, for there was nothing to shqw on what consideration, the note was given, or to rebut the ordinary presumption, that the demands between the parties were then liquidated and the. note made for the balance found to be due.from the maker. It is highly improbable that the plaintiff would have given this note to a person who was then indebted to him in a sum, according to this-report, much beyond the amount, of the note, and until some explanation shall, be given the note-is decisive evidence against any, such claim. If an explanation, can be giv-en it must come from the plaintiff, for the presumption. is that the note was giyenfor a balance admitted-to be due. Without examining other points made, the one already stated is decisive against the report, and it must be set ,aside. Motion granted.