Alexander v. Dutcher

Learned, P. J.: This was an action by the executrix of Andrew Alexander against the maker, Philip Duteher, and the several indorsers, House, Jerome B. Duteher and Charles Duteher, of a promissory note. Philip Duteher answered separately. The other defendants put in a joint and several answer. On the trial House was sworn as a witness and, on behalf of Philip Duteher, the maker, only, he was asked: Were you in the habit of borrowing money from Andrew Alexander from time to time ? The plaintiff objected, that this was a transaction between the witness and a deceased person, and the testimony was excluded. Philip Duteher was then sworn and, on behalf of the indorser, the offer was made to prove by him the usury set up in their answer. This was excluded on the same ground. The appellants claim that the provisions of the act of 1832 are not restricted by section 399 of the Code. The question has been decided otherwise in Genet v. Lawyer (61 Barb., 211), and we ought to follow that decision. It appeared on the trial that the note in suit became payable August 17, 1868; that the suit was commenced in February, 1874; that the defendant House was responsible and lived near Alexander ; that Alexander was pressed for money, and that he lived until June, 1873. From these facts the defendants asked to go tc the jury on the question of payment of the note, but the court refused and directed a verdict for the plaintiff. But no presumption from lapse of time of the payment of a mortgage arises within twenty years after the mortgage becomes payable. (Ingraham v. Baldwin, 9 N. Y., 45.) Nor does the pecuniary ability of the defendant tend to prove payment. (Daby v. Ericsson, 45 N. Y., 786.) [441] The judge properly directed a verdict and the judgment should be affirmed, with costs. Present — Learned, P. J., Bookes and Boardhan, JJ. Judgment affirmed, with costs.