Opinion
March, 1935.
Present — Sears, P.J., Taylor, Edgcomb, Thompson and Crosby, JJ.
Judgment and order reversed on the law and new trial granted, with costs to the appellant to abide the event. Memorandum: The answer admits a loan from plaintiff's intestate to the defendant and the payment of certain interest thereon. The law will imply a promise to repay the amount lent. A special defense is alleged to rebut this presumption but no proof was made on the trial to substantiate such defense. The receipt of the entry of the making of the loan in the memorandum book of plaintiff's intestate was error as such entry was a self-serving declaration not within the purview of section 374-a of the Civil Practice Act. In the interests of justice we grant a new trial. All concur. (The judgment awarded plaintiff a portion of a claimed loan to defendant by the intestate. The order denied a motion for a new trial on the minutes.)