(91 Hun, 73.)

#### BENDER v. BLESSING.

(Supreme Court, General Term, Third Department.

December 3, 1895.)

Statute op Limitations—Payments.

In an action on a promissory note, where payments of interest indorsed on the note are relied on to prevent the bar of the statute of limitations, the burden is on plaintiff to prove that the payments were made by, or by authority of, the defendant sought to be charged.

Appeal from Albany county court.

Action by James W. Bender against John L. Blessing on a promissory note. From a judgment entered on a verdict for $295.20 in favor of plaintiff, defendant appeals.

Reversed.

For former report, see 31 N. Y. Supp. 481.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

George H. Stevens, for appellant.

Stanwix & Murray (Galen R. Hitt, of counsel), for respondent.

*163MAYHAM, P. J.

The only substantial difference that we have discovered between the evidence on this trial and that which was taken on the former trial is that on this trial it does not appear by whom the interest which was indorsed upon the note was paid, if paid at all, whereas on the former trial the evidence tended to show that the interest, payments of which were indorsed on the note, had been paid by Martin J. Blessing, one of the joint and several makers of the note.

When the case was before this court on a former appeal (82 Hun, 320, 31 N. Y. Supp. 481), this court held that as the statute of limitations was pleaded by the defendant, John L. Blessing, and there was no evidence proving, or tending to prove, that any interest had been paid by him, or by any other person under his direction or authority, the note as to him was barred by the statute of limitations, and that judgment against him was accordingly reversed. On this trial, the note and the indorsements on the same were offered by the plaintiff in evidence, and received by the court, under the objection of the defendant that the indorsements were immaterial and improper, and not evidence against the defendant, John L. Blessing; that there was no evidence by whom the payments were made, and they are not themselves evidence against the defendant, John L. Blessing. The learned trial court held and decided on this trial, from the evidence offered, that the legal presumption is that either one or all of the makers of the note paid the interest, as it was their duty to do, at the end of each year, and held and charged that, as the evidence stood, the proof shows that each one of the makers may have paid.

If this court was right in its determination on the former appeal, there is nothing in the case as it now stands to change its determination made at that time. We see nothing, either in the law or the evidence, which calls upon us to change the conclusion reached by us on the former appeal, and the judgment must be reversed, for reasons stated in the opinion on that appeal, without reiterating an opinion here.

If the plaintiff, by his own proof, failed to make out a legal cause of action against the defendant, it was certainly not incumbent on the defendant to give any proof of his affirmative defense. He could safely stand upon the plaintiff’s failure of proof, and no presumption can be indulged in as against him for not introducing affirmative evidence of his defense when the plaintiff had failed to establish him a legal cause of action.

It is insisted by the learned counsel for the appellant that this court should, on this hearing, render judgment absolute in favor of the defendant, with costs,—a power which, doubtless, rests with this court in a proper case. Price v. Price, 33 Hun, 432. But if, on another trial, the plaintiff can establish payment of interest by this defendant, either upon the defendant’s testimony or that of any other witness, we think he should have the privilege of doing so.

Judgment reversed, and a new trial ordered; costs to abide the event. All concur.