Joseph H. Lansing, as Executor of Augustus J. Howell, Deceased, Respondent, v. Augustus A. Howell, Appellant

Joseph H. Lansing, as Executor of Augustus J. Howell, Deceased, Respondent, v. Augustus A. Howell, Appellant. [MAJORITY] Action to recover on a promissory note made on January 5, 1934, and bearing entries on the back of the note in the deceased payee’s handwriting, typically as follows: “Received with interest up to Jan 1, 1938.” The action was commenced on July 30, 1942. Judgment of the County Court of Dutchess County, entered on the verdict of a jury in favor of plaintiff reversed on the law and a new trial ordered, with costs to abide the event. A new trial would not be granted on any question of fact presented on this appeal. There was no evidence sufficient to carry the case to the jury on the question of whether or not a payment was made on a date that extended the period within which to commence suit. (Mills V. Davis, 113 H. T. 243, 248.) Upon a new trial, which is granted in the interests of justice, additional evidence may he furnished which would make out a prima facie case. Close, P. J., Carswell, Johnston, Adel and Lewis, JJ., concur.