Opinion
June 17, 1938.
Appeal from Surrogate's Court, Orange County.
The Statute of Limitations was not rendered inapplicable by reason of the purported proof with respect to part payment on account. While the books of account were properly received in evidence ( Mantha Co., Inc., v. DeGraff, 242 App. Div. 666; affd., without opinion, 266 N.Y. 581), such proof was merely evidence, in so far as the controversy here is concerned, of a sum due. The decision in that case was made upon the ground that the books did not involve a personal transaction between the decedent and the person whose testimony was challenged. The books did not and could not constitute evidence of payments on account by decedent with the intention of having them apply in a manner which would exclude the operation of the Statute of Limitations, as for that purpose they would be purely hearsay and self-serving. ( Crow v. Gleason, 141 N.Y. 489; Adams v. Olin, 140 id. 150, 159, 160.) Testimony of claimant independent of the books was barred by section 347 of the Civil Practice Act. Lazansky, P.J., Hagarty, Johnston and Taylor, JJ., concur; Carswell, J., concurs in result.