As stated hy Judge Andrews in Nay v. Curley (113 N. Y. 575), “ it is undoubtedly the general rule that, in the absence of explanation, the presumption ■ arising from , the delivery of a check is that'it was delivered in payment of a debt, and not as a loán. * * * But a check may represent a loan or a gift, or money of the drawer, to be applied by the drawee to the use of the former as his agent cjr otherwise. Starting from this generalrulé, I do not think that the evidence justified ah inference that the checks, in question represented loans for which the payee of the checks was j liable to the testator. In the first place, I think the stubs of the checks were not competent evidence to prove the intension of the testator when the checks • were given, or the character of the transaction represented by them. It was not shown that the person making the entries had any knowledge of the relations between the testator and his nephew, or that he did more than write out the checks; and his characterization of the intention of the testator, so far as appears, created no inference as to the nature of the transaction, and certainly was noj evidence as to the actual transaction between the testator and ¡his nephew. Eliminating this testimony, we have the fact ¡that on March 1, 1901,'the testator gave to his nephew one suijn of $6,100, and at the same time tvolc. from, him á note for $10,0p0, and as to the amount of that note the nephew has been held responsible. The testator subsequently paid to his nephew, by checks which were introduced in evidence, various sums of money representing the amount now, in controversy; but 'the case, it seems to me, is- entirely devoid of any evidence t'o show that these checks were hot giveh either as a gift or nkoney of the testator, to be applied by his nephew for the use ¡of the testator. The fact that -the nephew was impecunious! and that the testator had, prior to March" 1, 1901, assisted him by loaning, him money, does not justify an inference that the moneys subsequently advanced *143were loans, and the fact that the testator took a note for the money that represented loans, and did not ask for or receive a note for the subsequent payments, Would seem to justify an inference that they were not intended as loans or advancements.
I do not think, therefore, that the judgment was sustained by the evidence, and, therefore, it should be reversed.
Laugi-ilin, J., concurred.
. ‘ Judgment affirmed, with costs.