#### Lewis Crager, Respondent, *against*Robert Reis, Impleaded with Morris A. Tynberg, Appellant.

(Decided January 5th, 1891.)

The presumption, in the absence of evidence as to the time of delivery of a release under seal, that it was delivered • on the day of its date, is not overcome by the fact that the acknowledgment annexed to it was taken on a subsequent day, where it does not appear that the person who executed it had possession of it when he made such acknowledgment.

Appeal from a judgment of the District Court in the City of New York for the Seventh Judicial District.

*451The facts are stated in the opinion.

*Sampler ¿-*Bloomfield, for appellant.

*Says Grreenbaum,*for respondent.

Bischoff, J.

This was an action brought by the plaintiff against Robert Reis and M. A. Tynberg to recover the balance due for goods sold and delivered by the firm of M. Schlessinger & Co. to the defendants, comprising the firm of M. A. Tynberg & Co., the plaintiff claiming under an alleged assignment from M. Schlessinger & Co. ■ The complaint alleged the copartnership of the defendants and the co-partnership of Max Schlessinger and Emile Lux; that Schlessinger & Co. sold and delivered to Tynberg & Co. merchandise of the value of two hundred and twenty-one dollars and nine cents ($221.09) of whicli one hundred and thirty-two dollars and sixty-four cents ($132.64) had been paid, leaving a balance of eighty-eight dollars and forty-five cents ($88.45) with interest. The complaint further alleged that, prior to the commencement of this action, Schlessinger & Co. had assigned the claim for the balance due, to the'plaintiff. The defendant Réis by his answer did not controvert the allegations of co-partnership, and he was, therefore, precluded upon the trial from offering any testimony in contradiction of the allegations in the complaint that the defendants were copartners under the firm name of M. A. Tynberg & Co., and that Max Schlessinger and Emile Lux were copartners under the firm name of M. Schlessinger & Co. The defendant Reis denied all other allegations of the complaint, and as a particular defense asserted that prior to the commencement of this action Schlessinger & Co., for valuable consideration, had forever released and discharged him from all liability upon the claim in suit. Upon the trial one Sigismund Tynberg, a son of the defendant Tynberg, was called as a witness for the plaintiff, and testified that he was the manager of the business of M. A. Tynberg & Co.; that he kept their books ; that they had purchased merchandise from Schlessinger & Co. to the amount of two hun-

*452dved and twenty-one dollars and nine. cents ($221.09), of which only the sum of one hundred and thirty-two dollars and sixty-four cents ($132.64) had been paid, and that there was due from said Tynberg .& Co. to Schlessinger & Co., for the balance of the claim, the sum of eighty-eight dollars and forty-five cents. ($88.45), with the accrued interest thereon! No attempt was made on behalf of defendants to controvert this testimony, and the claim in suit was therefore sufficiently established. The plaintiff also produced in evidence' an alleged assignment of the claim dated April 13th, 1889, signed M. Schlessinger & Co., which he attempted to prove by the-testimony of Sigismund Tynberg, who testified that he saw the assignment executed by Emile Lux and delivered to the plaintiff on the day of its date. The defendant Reis, on the other hand, offered in evidence a paper under the hand and seal of Schlessinger & Co. dated September 12th, 1888, executed in the name of Schlessinger & Co. by Max Schlessinger, and purporting to release and discharge the defendant" Reis from all claims which said Schlessinger & Co. had against him individually or as a member of the firm of M. A. Tynberg & Co. . The execution of this release was proved "by one Silberstein, the subscribing witness, who testified that he saw it executed by Max Schlessinger on the day of its date. He also testified that he saw it delivered, but whether or not delivery took place on the day it bears date or upon a subsequent day does not appear. We have, therefore, to consider in this case only the effect of the alleged assignment under which the plaintiff claims and the instrument under which the defendant claims to be released.

It is elementary that, in the absence of proof to the' con-! trary, a deed in the possession of the grantee must be .presumed to have been delivered on the day of its date (Best on Evidence § 402 ; Abbott’s Trial Evidence, p. 508).

. Applying this presumption to the facts of the case before us, and there being no proof of the actual time of its delivery, we are constrained to hold that the instrument discharging the defendant Reis from all liability to Schlessinger &' Col growing out of their claims against Tynberg & Co. was de-

*453livered on September 12th, 1888, and, therefore, prior to the alleged assignment to the plaintiff, which is dated April 13th, 1889. And thus the plaintiff under the alleged assignment to him could not thereby have acquired any cause of action growing out of the indebtedness of Tynberg & Co. to Schlessinger as against the defendant Reis. If the plaintiff meant to contend that the release of Reis was actually delivered upon a day subsequent to its date, and subsequent to the assignment to him, it was incumbent upon him to introduce evidence to that effect, and in this he has utterly failed. .The fact that the acknowledgment.to the release was taken on a day subsequent to its date, and subsequent to the alleged assignment to the plaintiff, to wit, May 29th, 1889, is not sufficient to destroy the presumption of delivery on the day of the date of the instrument, since it does not appear from such acknowledgment that on the day of the date thereof Schlessinger was in possession of the instrument; and without some evidence that Schlessinger continued to be in possession of the instrument subsequent to the day of its date, we cannot find that it was delivered upon a day other than such day.

The judgment should be reversed, with costs to abide the event, and a new trial ordered.

Bookstaver, J., concurred.

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