In re the Estate of Williams

Wingate, S.

It is undoubtedly true, as is noted by the learned referee (James S. Regan, Esq.) in this proceeding, “ that, in the absence of other evidence, a loan is not to be presumed from the making of a check or the acceptance and payment of a draft, but that it is to be presumed in such case that the transaction constituted a payment on account of an existing indebtedness by the maker of the check or the acceptor of the draft.” (Marks v. Kellogg, 170 App. Div. 464, 468.)

The limitation of the rule is inherent in its statement, and is further clarified by the succeeding sentence of the same…