I agree with the opinion by Judge CONWAY to the extent that it approves the ruling by the Surrogate which rejected, under the prohibition of section 347 of the Civil Practice Act, the offer of oral testimony by the appellant to prove that the six checks totaling $7,500, given to her by the decedent, were for a purpose other than payment of the note which is the basis of her present claim.
I dissent, however, from the view of the majority that upon the record before us the Surrogate was not justified in finding that the note of $7,500, made by the decedent and now held by the appellant as payee, has been paid. It impresses me that the majority opinion disregards the rule which limits the scope of our present inquiry on that branch of the case to the question whether there was any evidence from which the Surrogate could find that *Page 305 payment of the note had been made. (City of New York v. Wilson Co., 278 N.Y. 86, 92.) Upon that phase of the problem the respondents-executors introduced in evidence six checks of amounts totaling $7,500. The appellant conceded that the proceeds of those six checks were credited to her personal account and that such checks were not received as payments to her by the decedent under their separation agreement but were payments in addition to those due thereunder. These conceded facts, with inferences fairly to be drawn from them, afforded a sufficient basis for the finding by the Surrogate, which has been approved by the Appellate Division, that the note of $7,500 had been paid.
The inference of payment of the $7,500 note which might have been drawn from the conceded facts mentioned above, is not a certainty — it is not uncontrovertible. But the inference to be drawn from those conceded facts was for the Surrogate, as trier of the facts, who found that the six checks in amounts totalling $7,500 delivered to the appellant were in payment of the note here in controversy. "* * * when the process is to be had at a trial of ascertaining whether one fact had being, from the existence of another fact, it is for the jury to go through with that process." (Hart v. Hudson River Bridge Co., 80 N.Y. 622,623; Justice v. Lang, 52 N.Y. 323, 327-331.) It is that rule which prompted this court to approve the statement by CROUCH, J., that — "Inference is never certainty, but it may be plain enough to justify a finding of fact." (Tortora v. State of New York,269 N.Y. 167, 170.)
There being some evidence to support the finding of the Surrogate that the decedent had paid the note which is now the basis of the appellant's claim against his estate, I dissent and vote to affirm the order of the Appellate Division.
LOUGHRAN, FINCH and RIPPEY, JJ., concur with CONWAY, J., LEWIS, J., dissents in opinion in which LEHMAN, Ch. J., and DESMOND, J., concur.
Ordered accordingly. *Page 306