#### Beekman T. Burnham, Plaintiff, *v.*Emily A. Burnham et al., Defendants.

(Supreme Court, New York Special Term,

April, 1899.)

1. Action by a creditor against his debtor’s devisees—Judgment ’against a devisee as executor not evidence against devisees.

In' an action‘brought under sections 1837-1860 of the Code .of Civil Procedure by a* creditor against the devisees of his debtor to charge his indebtedness against the devised real estate, á judgment which the creditor has recovered against one of the devisees as executor ■ ; of the debtor is inadmissible, as proof of his claim, against the devisees, they not having been parties to the action in which the judgment was recovered.

3. Same —Statute of Limitations.

Such an action, when based upon a balance alleged to be due to the plaintiff as surviving partner' of a firm, is within the six years’ *107statute of limitations and is barred by the lapse of that period, extended, however, by the three years after the decease of the debtor in which action is prevented by the provisions of the Code of Civil Procedure. (See Code Civ. Pro., § 1844.)

Special action, brought under sections 1837 to 1860 of the Code of Civil Procedure, to charge devisees of real estate with an alleged indebtedness of the testator to the plaintiff for which plaintiff had recovered judgment against the defendant Emily A. Burnham as executrix.

The answers denied the indebtedness and set up the Statute of Limitations as a defense.

The facts are sufficiently stated in the opinion.

William B. Ellison, for plaintiff.

Scott & Upson, for defendant Emily A. Burnham.

Charles Strauss (Michael A. Quinlan, of counsel), guardian *ad litem*for Arline P. Burnham and Reginald L. Burnham, infants.

Kellogg, J.

This action is brought to charge the defendants as devisees of Elbert S. Burnham, deceased, with the payment of a considerable claim which, plaintiff alleges, the deceased owed at the date of his decease. It is not questioned that the devisees took from the testator sufficient real estate to satisfy the claim, but the devisees contend that no claim ever existed, and if one ever did exist, it is barred by the Statute of Limitations. The testator died January 12, 1888, and this action was commenced April 14, 1898. The claim, if any existed, was due at the date of the testator’s death. It appears that a claim was by the plaintiff presented to the executrix of the estate of the testator in 1890, which was rejected, and that an action was brought in the Supreme Court against the executrix, which resulted in a judgment in 1896 for $12,945.28 on the report of the referee. This judgment is offered in this action by plaintiff" as evidence of the amount and validity of plaintiff’s claim. The. defendants insist that the judgment is neither conclusive or *prima facie*evidence on that subject," as none of these defendants were parties to that action and are in no way bound by the adjudication. I think the, position *108taken by the defendants is supported by all the decisions of' the courts in this state where the exact or Analogous , question has arisen. Sharpe v. Freeman, 45 N. Y. 802; Rathbone v. Hooney, 58 id. 467; Kent v. Kent, 62 id. 560; Collins v. Hydorn, 135 id. 320. Upon what theory■ or proof the referee was led to his conclusion or. upon what admissions of the defendant in that action is not apparent. All the. evidence, ever in existence to support the plaintiff’s claim, except the testimony of some witnesses, now dead, se'ems to have been offered on this trial, and front this it .appears that plaintiff and the deceased were brothers arid were copartners from prior to 1865 to the decease of the testator' in 1888. That., their business required, no capital arid the ownership only of the office furniture. That they were collectors of rents for others, collecting rents aggregating about $6,00.0 per month and depositing- the money ,in bank in- the firm name,- and paying over the money, less a small commission, the fore, part of the month following. Once in six months-' the profits or commissions "were. figured up, and presumably each took his share. Books were kept of these transactions by the plaintiff, who was the only bookkeeper. Money was collected by .both and by clerks, but so far as the books show, or the testimony shows, all the money collected, and of which these brothers became temporary custodians, was deposited in the firm name in the bank and was properly'd'rawn on firm checks and paid over to the proper owners. The books show no appropriation .of any part of these trust funds by eithqr partner and no indebtedness of either partner to the other, or indebtedness of either partner to the firm. At the time of the death of the' testator the collections for the month of December previous, and to January 12, 1888, were unpaid'to the owners, but the bank-book shows that all th.ese moneys were in' bank and came into the hands of plaintiff as surviving partner, and were paid out by him, and that all the company debts or claims of owners of the money held in trust were extinguished with money so collected and deposited and held temporarily by the company. There is a confusion apparent in the memory of the plaintiff when he attempts to give any specific, fact looking to the establishment of a claim; the. books themselves furnish none upon which a claim against either partner can be based. It is evident that they intended to close up their personal accounts' and divide profits each half year, and that .would account for the total absence of any book account of the amount each received. It is *109-contended by plaintiff that the theory adopted by the referee in the action against the executrix should be adopted here, viz.: To charge the deceased with all the money which the books showed was collected by the firm since 1865, and give him credit for only what the books showed had been paid out, though it is admitted that all the rents had been paid over, except those cdllected in December, 1887, and up to January 12, 1888, and that the money was in bank in the firm name to pay these when testator died. These books, which are- to guide on this monstrous proposition, were kept exclusively by the plaintiff. Such a method of procedure against a dead man’s estate could only- be adopted upon the clearest proof and such proof as would most convincingly destroy the accepted rules in such cases and close the door against the reasonable presumptions of equal honesty, liability and responsibility of copartners. All the evidence of any worth here presented is opposed to this theory of plaintiff. The plaintiff, as bookkeeper for the firm, had at all times all the facts before him, and if either partner abstracted for his personal use any of the trust money or any company money he must have known it, and the proper entry of fact would have been made in the books,by him kept. He cannot, now his brother is dead, expect to get a willing ear to plaints which impeach the fairness of his book record. If the deceased brother was by the firm understood to be held responsible to the firm for all the money coming to the custody of either copartner we should expect to find an account in the books kept with him, and each item received charged up against him with corresponding credits for money paid out, and we would also look for a bank account in his name alone where these moneys were deposited under his sole control, and not a bank account as here showing all these moneys deposited in the firm name and subject to withdrawal- by either one of the partners. The evidence of the books here offered and the testimony of plaintiff’s witnesses are so convincing that if even the' former, judgment against the executrix were to be regarded as *prima fade*proof of an existing claim against the heirs or devisees the force of such judgment would be completely destroyed. I am further of opinion that the claim, if one ever existed, is barred by the Statute of Limitations, and that the six years’ statute applies in such cases. The six years, however, to be extended by the three years after the decease of the. debtor, in which action is prevented by provisions of the Code. This seems to be the precise question *110•determined in Adams v. Fassett, 149 N. Y. 61. The complaint herein should he. dismissed upon the merits, and judgment is so directed.

Complaint dismissed.