Rosenstock v. Dessar

presumed to have been, adjusted, and that presumption will bar a recovery unless it be rebutted by competent evidence showing that no such settlement and adjustment has ever been made. 13 Am. & Eng. Enc. Law, 668, 669; In re Devereux’s Estate (Pa. Sup.) 39 Atl. 225 ; Sweeney v. Sweeney (Sup.) 10 N. Y. Supp. 178 ; In re Neilley, 95 N. Y. 382 ; Sheldon v. Heaton, 22 App. Div. 308 , 47 N. Y. Supp. 1124 ; Lyon v. Adde, 63 Barb. 89 ; Lyon v. Chase, 51 Barb. 13 . The onus is in such case shifted on thé creditor to negative the fact of payment, and it can only be rebutted by the most satisfactory proof. Lyon v. Adde, supra; Devereux’s Estate, supra. This presumption applied with all its force to this case, and it was treated as raising a question of fact for the jury. Sheldon v. Heaton, 22 App. Div. 308 , 47 N. Y. Supp. 1124 ; Bean v. Tonnele, 94 N. Y. 381 ; Macaulay v. Palmer, 125 N. Y. 742 , 26 N. E. 912 ; Hall v. Roberts, 63 Hun, 473 , 18 N. Y. Supp. 480 . The jury found in favor of the plaintiff, and the defendants move to set aside the verdict as contrary to the evidence, and insist that the complaint must be dismissed. The nature of the motion necessitates a statement of what appear to be the controlling facts: The plaintiff’s testator, Levi Jacobs, and Sarah Engel intermarried in 1874. Two days before the wedding Miss Engel’s mother gave the prospective bridegroom the sum of $1,500 as a wedding present, and it seems this was the.sum deposited with Dessar, Stern & Co. by Levi Jacobs two days after the marriage. Both the firm and the testator carried on the dry-goods and clothing business. For about two years after the deposit was made the testator continued to reside and do business in the city of New York. In or about 1876 he moved to Barton, Vt., and subsequently he carried on business at North Stratford, N. H., at which latter place he died in 1892.' The paper upon which the suit was brought was found in his pocketbook a few days after his death, and the action was not brought until December, 1898. Mr. Stern retired from the firm in 1878, and the name was changed to Dessar Bros. & Co. In 1882, on the introduction of Mr. Wise, the name was changed to Dessar, Wise & Co., which name was retained down to the failure of the co-partnership in 1884. After the failure the books were seized by the sheriff, and they could not be produced on the trial. At the date of the failure the testator resided and carried on business at Barton, Vt. His brother, Aaron. I. Jacobs, also resided there. Aaron had money deposited with the firm. He and" another brother, Joseph Jacobs, also a creditor, received notice of the failure, but the testator received none. Although the fact of the failure was discussed by the testator and his brothers in the presence of the testator’s wife, the testator expressed no personal interest in it, but appeared to be greatly exercised over the loss incurred by Aaron through the failure. Aaron brought suit and recovered judgment. The testator survived the failure eight years, but resorted to no remedy for the recovery of any claim he might have had. The wife thought the testator had told her the $1,500 wedding present was deposited with Dessar, Stern & Co.; yet she did not say or do anything about the deposit on receiving news of the failure or thereafter, until 1892. The money was left with the firm because of the contract to pay a larger rate of interest than

that given by a savings bank, notwithstanding which no interest was, prior to the demands on which the suit is based, ever demanded or paid on the deposit. The testator was evidently a man of moderate means, for his wife assisted him in business during the four or five years immediately preceding his death. The receipt, or certificate, was found in 1892. No demand on defendants was made until 1894, and, although payment was then refused, suit was not brought until 1898, two years after the death of Mr. Stern, the retired partner, and after advertisement for claims against, and distribution of the assets of, his estate. The defendants have been continuously in the city of New York, where they could have been reached by process at any time. After the failure of Dessar, Wise & Co., the creditors, through William A. Harding, an expert accountant, now dead, made an examination of the firm accounts. In the accountant’s report, dated October 25,1884, the name of the testator does not appear as a creditor of the firm, but the names of Joseph Jacobs and Carrie Jacobs, wife of Aaron I. Jacobs, are in the list of loan creditors. The defendant David Dessar testified that the account of plaintiff’s testator with the firm was settled in 1881. Plaintiff’s witness Ezekiel testified that he was bookkeeper of Dessar, Stern & Co. and the successor firms from 1875 to 1882; that during his connection with Dessar, Stern & Co. the books in his charge showed an entry of a special deposit of §1,500 to the credit of the testator; and that this entry was kept separate from the merchandise account of the firm with the testator. As the name of the firm was Dessar Bros. & Co. in 1881, Ezekiel’s testimony is not inconsistent with that of David Dessar, to the effect that the account was balanced in 1881. But, assuming that the witness meant to testify as to the entire period of his connection with Dessar, Stern & Do. and the successor firms, that would leave a period of about two years from the date of his severance from Dessar, Wise & Do. to the failure of that concern in 1884, and it was not until that year that the accountant, Harding, examined the books and made his report. The facts and the inferences legitimately deducible therefrom strongly support the defense of payment, and stamp as clearly against the weight of evidence the finding of the jury in plaintiff’s favor. The plaintiff did not satisfactorily sustain the burden of proving nonpayment. On the contrary, there is not a single circumstance or argument to be found in plaintiff’s favor, except the bare possession of the deposit receipt, while circumstances crop out all over indicating in harmonious accord that the debt has at some time during the past 26 years been fully paid. The verdict must therefore be set aside. See Ferguson v. Gill, 74 Hun, 566 , 26 N. Y. Supp. 596 ; Dunning v. Bowe, 16 N. Y. Wkly. Dig. 119; Macy v. Wheeler, 30 N. Y. 231 ; Thompson v. Menck, 22 How. Prac. 431.

It follows that the complaint should have been dismissed upon the conclusion of the trial, and that it must be dismissed no w, with costs.