(dissenting). I dissent. The decree, in so far as appealed from, should be reversed, the appellant’s claim upon the $7,500 note allowed as valid, and the proceeding should be remitted to the Surrogate’s Court, with a direction to enter a decree accordingly.
Claimant established prima facie her cause of action on the note by producing it and having it received in evidence. Upon now familiar principles, the burden then rested upon the executors to prove payment of that note. (Lynch v. Lyons, 131 App. Div. 120.) Such burden, upon the undisputed proofs, as matter of law was ■not sustained. The executors produced and there were received in evidence checks, six in number, the first dated June 2, 1937, and The last dated October 21, 1938, aggregating $7,500. These checks *79were concededly paid by testator to the claimant, who received the proceeds thereof. A presumption attached to each check, viz., that it was in payment of an existing indebtedness of testator to claimant. There is neither evidence nor presumption that they were, or that any one of them was, paid on account of the $7,500 note. The fact that they aggregate in amount $7,500 does not establish it.. As was stated by this court upon the prior appeal (262 App. Div. 879): “ There is no showing of any relationship between the note and the checks. For aught that appears, the executors arbitrarily selected the checks in question from payments made by decedent to the appellant, inclusive of payments made in accordance with the separation agreement.”
Numerous other checks from testator to claimant, forty-four in all, were offered and received in evidence as Exhibits I to M, inclusive, each exhibit consisting of several checks, with a statement by executors’ counsel, but no proof, that such other checks were “ regular payments ” under the separation agreement between testator and claimant. The parties in effect stipulated that the above-mentioned six checks, aggregating $7,500, were not on account of moneys due from testator to claimant under the separation agreement. As to the other forty-four checks, claimant admitted only that those in the sum of $1,875 each, thirty-two in number, were payments due under that agreement. The others, twelve in number, were the subject of no proof establishing the (presumed) indebtedness of the testator to claimant to which they were to apply. Transactions between deceased and claimant, other than those represented by the $7,500 note and the separation agreement, are inferable. Under all the circumstances and upon the undisputed facts, therefore, the burden of proving payment was not sustained. Hence the surrogate should have allowed as valid the appellant’s claim on the $7,500 note, as to which it is quite significant that the note had never been surrendered to the maker, and that it bore no indorsements indicating payments on account thereof.
: Lynch v. Lyons (supra), read in the light of its peculiar facts, is not inconsistent with my views above indicated.
As there should be reversal and the direction indicated as to the note, the provision of the decree denying the claimant costs should be the subject of reversal also. I agree with the majority that nothing in this record opened the door to the claimant’s testimony excluded by the surrogate under the provisions of section 347 of the Civil Practice Act.
Decree of the Westchester County Surrogate’s Court resettling the account of executors, in so far as appealed from, affirmed, with costs to respondent executors, payable out of the estate.