#### Nelson A. Miller et al., Appellants, *v.*Charles Smith, Respondent.

(Supreme Court, Appellate Term,

June, 1898.)

Payment — Proof.

Where proof of payment, denied by the creditor, rests upon the evidence of the debtor and his clerk that payment was made to the creditor’s agent, a finding of payment will be. reversed where a receipt given to the debtor is not produced by him, nor - its absence satisfactorily explained, nor its last custodian produced.

Appeal from a judgment of the Municipal O'Ourt of the CSty of Hew Tork, borough of Manhattan, seventh district, rendered in favor of the defendant.

*649Milton Mayer, for appellants.

Henry J. Goldsmith, for respondent.

Beekman, P. J.

The only issue in this case was whether the amount sued for had heen paid or not. The justice below has found for the defendant, and if there had been a fair conflict of evidence upon the point, we should not undertake to disturb his judgment. We think, however, that the evidence Was not sufficient to "support it. The defendant claims that he paid the amount in controversy in bills to a person representing himself to be the agent of the .plaintiffs. In this he is confirmed by the testimony of one Stern, who was his clerk, and who stated that both he and the bartender of the defendant were present at the time. The bartender was not produced, and no reason is given for the failure to do so. The defendant and Stern both testified that upon the payment of the money, the person to whom it was paid gave to the defendant a receipted bill; that the defendant thereupon handed it to Stem, directing him to deliver it to the bartender at defendant’s down-towtu place of business for safe-keeping, which Stem says he did. The receipt, however, was not produced upon the trial, the defendant stating that he was unable to find it. While there was some proof given tending to show that a search had been made, it was most unsatisfactory in its character and failed to show that it was prosecuted with any degree of thoroughness. The bartender to whom, according to Stem’s evidence, it had been delivered, although still in the employment of the defendant, was not produced and examined upon the subject. An effort was made to identify one of the collectors of the plaintiffs named Moore, who was present in court, with the person to whom it was claimed the money had been paid. The testimony upon this point, however, was not of a positive character, while the defendant said “ that is he,” he immediately qualified his answer by adding *“*It looks very much like him,” and the most that Stem was willing to say was that Moore resembled him, 'but that he would not say positively that he was the person. Against this inconclusive evidence the record shows that Moore himself was put'upon the witness-stand and denied positively that any such payment had been made to him; that at the time in question he was not in the plaintiffs’ employ and did not enter their service until two months after the time of the alleged occurrence, and in this he was corroborated by the testimony of Mr. Miller, one of the plaintffs. We are of the *650opinion that the evidence on the part of the defendant was not of such a character as to justify the justice in finding that there had been a payment of the amount sued for, ¡and that the judgment should, therefore, be reversed.

Judgment reversed and a new trial ordered, with 'costs to the. appellants to abide the event.

Gtldersleeve and Q-ieoeUioh, J.J., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.