App. Div.]

Third Department, May, 1908.

of the amount due upon the mortgage; that thereafter he did purchase the property of said mortgagee; that when he had acquired title he and defendant and Charles Kirkpatrick went to the office of a lawyer by the name of Ransom. At that time and place there was drawn and executed a paper or deed which gave the title to defendant upon her payment of rent in sufficient amount to pay the amount paid by said Striker upon the mortgage, or if the said amount should not be paid in full at the death of said Striker, then the title was to go to the defendant without further payment on her part; that this paper or deed was left with the said Ranson in escrow for her, and that the defendant continued to make payments of rent, and paid a substantial sum thereupon prior to the death of said Striker; that the said Ransom, the lawyer who held the deed in escrow, is dead, and that the paper or deed cannot be found. These are substantially the facts found by the learned trial judge, and upon which he based his judgment dismissing the plaintiff's complaint.

We are of the opinion that the evidence of the defendant as to what transpired between John Striker and Charles Kirkpatrick in reference to a contract made in her behalf was improperly received. We think such evidence comes clearly within the condemnation of the prevailing opinion in Hutton v. Smith (175 N. Y. 375). The same facts, however, were sworn to more in detail by Charles Kirkpatrick, and were not contradicted, as in truth there was no opportunity to contradict, because of the death of John Striker. Because the facts appear by evidence of another witness unimpeached and uncontradicted, we are of the opinion that this judgment should not be reversed by reason of the erroneous admission of this evidence. If the title of the defendant must stand upon a contract between Striker and Charles Kirkpatrick, then the defense must fail, because that contract has been sworn to by Charles Kirkpatrick, who would be a party under whom the defendant would then claim, and such evidence would be incompetent to prove such fact. This defense, however, must stand upon the papers or deed delivered in escrow to Ransom for the defendant. While the evidence is not as clear and distinct as we might well wish as to the exact nature of the paper, and as to whether it was left with Ransom or kept by Striker, nevertheless it is clear that the parties went to Ransom's

Third Department, May, 1908.

[Vol. 126. office for the purpose of drawing a paper which would give this property to the defendant at Striker's death. And some force must be given to the presumption that the paper was of a nature that would accomplish the result desired, and that it was left with Ransom for delivery to the defendant at the death of Striker. That presumption is reinforced by the fact that this paper apparently was not found among Striker's papers at his death, and we cannot say that the finding of the trial court of the execution of the deed and its delivery to Ransom in escrow was against the weight of evidence. The evidence of Charles Kirkpatrick was given practically upon his death bed. It is not likely at that time that he was telling an untruth, and the trial court was undoubtedly impressed, as we have been impressed, with the evident intent of these parties to provide a home for the defendant at the death of John Striker. Such, too, is the purport of the declarations of Striker in his lifetime.

The evidence of Charles Kirkpatrick is not incompetent under section 829 of the Code of Civil Procedure. Defendant does not claim under him. But this evidence was given in an action of ejectment brought by the life tenant of the estate of which these plaintiffs are remaindermen against this same defendant. That action was never brought to trial, and the evidence was taken before a referee de bene esse. This evidence would seem to be competent under section 830 of the Code, as also under the common law. (Shaw v. New York El. R. R. Co., 187 N. Y. 186.) That the remainderman is a privy of the life tenant is held in Jackson v. Lawson (15 Johns. 539, 543).

Complaint is further made that the trial court refused to allow in evidence the books of Mr. Striker, and of the executors after his death. We are unable to see how these books could in any way be competent. Their entries constituted mere hearsay evidence, and we are referred to no rule of law which makes them an exception to the general rule requiring the exclusion of such evidence. We have examined the other objections to this judgment urged by the appellant, and find no reason for reversing the same. The judgment should be affirmed, with costs.

All concurred, except KELLOGG, J., dissenting in opinion, in which COCHRANE, J., concurred.

App. Div.]

Third Department, May, 1908.

KELLOGG, J. (dissenting):

The judgment appealed from rests substantially upon the evidence of Kirkpatrick, a witness now deceased, whose testimony was taken on behalf of the defendant Fox, under section 871 of the Code of Civil Procedure, in an action of ejectinent brought by the father of the plaintiffs against her.

The defendant Fox was in possession under one Striker, the former owner, and she claimed to own the property by virtue of a conveyance or agreement from him. The plaintiffs claimed that Striker owned the property at the time of his death, and that by his will their father was given a life estate in it, with remainder to them. The father brought an action of ejectment against the defendant Fox, which she defended, in which the question litigated was whether Striker or the defendant Fox owned the property at the time of his death. The witness Kirkpatrick was in extremis at the time of his examination, and died the next day. Thereafter the plaintiff in that action died before its determination, and the plaintiffs bring this action to recover the same property.

Perhaps a life tenant may do certain acts while in possession which may prejudice the title of the remainderman; but in the case we are now considering neither the alleged life tenant nor the alleged remaindermen were ever in possession, and the defendant asserts that neither had any interest as life tenant, remainderman or otherwise in this property.

Section 830 of the Code of Civil Procedure permits the evidence given upon a former trial by a witness since deceased to be used in an action relating to the same subject-matter between the same parties or “their legal representatives." It is evident that the plaintiffs are not the legal representatives of the plaintiff in the former action. If they have any interest in this property they acquired it by the Striker will. It is true the alleged interest of the father, and their alleged interest, are acquired under that will, which will is not in dispute; but whatever interest they had in the property they received from the testator and not from their father; they have not succeeded to any right or interest which their father had in this property. He claimed a different interest and a different estate in the same property traced from the same title; but that does not

Third Department, May, 1908.

[Vol. 126.

The testimony was not

make them his legal representatives. admissible within the provisions of that section.

This provision of the Code in its present form is substantially a declaration of the common law rule, which is said to be an exception to the general practice that hearsay evidence is not admissible. It is sometimes incorrectly said that this evidence is received because the declarant was sworn at some time and examined by somebody, and, therefore, the statement had more force than the ordinary hearsay declaration. But the rule rests upon broader and more reasonable grounds. The evidence is admissible because the party himself was present at the former trial, and had the opportunity and was charged with the duty of making a full cross-examination of the witness with reference to the subject-matter, and, therefore, it is proper that such evidence be considered when the same subjectmatter again comes in controversy between them.

Greenleaf on Evidence (Vol. 1, § 163) states the rule: "But where the testimony was given under oath, in a judicial proceeding, in which the adverse litigant was a party, and where he had the power to cross-examine, and was legally called upon so to do, the great and ordinary test of truth being no longer wanting, the testimony so given is admitted, after the decease of the witness, in any subsequent suit between the same parties."

In Young v. Valentine (177 N. Y. 347, 357) the court says: “The fundamental ground upon which evidence given by a witness, who afterwards dies, may be read in evidence on a subsequent trial, is that it was taken in an action or proceeding where the parties against whom it is offered or their privies have had both the right and the opportunity to cross-examine the witness as to the statement offered. The principle on which, chiefly, this evidence is admitted, namely, the right of cross-examination, requires that its admission be carefully restricted to the extent of that right; and that where the witness incidentally stated matter, as to which the party was not permitted by the law of trials to cross-examine him, his statement as to that matter ought not afterwards to be received in evidence against such party "".

In Deering v. Schreyer (88 App. Div. 457) a witness was sworn and cross-examined at length and the case decided, but the judgment was reversed upon the ground that the court had no jurisdic

App. Div.]

Third Department, May, 1908.

tion, and it was held that the testimony given on such a trial could not be received in another action for the reason that as the court had no jurisdiction the party was not legally called upon to crossexamine the witness.

In Burnham v. Burnham (46 App. Div. 513; affd., 165 N. Y. 659, on opinion below), where the witness was fully cross-examined upon a former trial, the evidence was excluded upon the ground that the heir was not in privity with the administrator and, therefore, not within the rule.

We, therefore, see that the fact that the party had the right and was charged with the duty of cross-examining the witness upon the former trial is the real foundation for the rule. The question in this case, therefore, is whether the plaintiffs, in fact or in law, examined or were charged with the duty of examining this witness and whether they have succeeded to any interest which, upon the former trial, was clothed with such right and charged with such duty. In other words, whether with reference to such testimony the plaintiffs have had their day in court.

Jackson v. Lawson (15 Johns. 539) announces a rule which seems to justify the court in receiving Kirkpatrick's testimony. It was there held that the remainderman in possession was in privity with the life tenant, and was in possession under him to such an extent that such testimony was admissible. When offered the trial judge excluded the testimony; upon a motion for a new trial the court set aside the verdict, saying: "On this ground the defendant is entitled to a new trial; though, independently of this, I think a new trial ought to be granted on the other grounds taken in the argument, that the verdict is against the weight of evidence."

Jackson v. Crissey (3 Wend. 251) cites the above case as authority for the proposition that evidence given upon a trial if admissible against a party is admissible against his privy, but held that where the party to the former suit and the party to the present suit acquired parts of the same farm from the same source, the former suit relating to one parcel of land did not affect the owner of the other parcel of land, although both rested upon the same disputed title and, therefore, such evidence was not admissible. I do not find that the Lawson case has been otherwise cited as authority by our courts.