Third Department, May, 1908. [Vol. 126. Within the ordinary definition of the word "privy" as applied to estoppels by judgment, to the admissions of a party and to the admission of this class of evidence I am satisfied that that case goes too far. In Burnham v. Burnham (supra) it was held that devisees are not in privity with the executor, and that a judgment against the latter is not evidence against them, and that the evidence of a witness (since deceased) in his action is not admissible in their action. "It seems that the same rule would apply where the parties to the first trial were represented on the second occasion by persons who had succeeded to them by privity of law, of blood or of estate, and that the rule upon the subject is in this respect analogous to that which prevails as to estoppels by judgment, the admissibility of verdicts and the effect of admissions." (1 Phill. Ev. 402.) Stephen's Digest on Evidence (Art. 32) states the proviso "That the action, if civil, was between the same parties or their representatives in interest." 23 American and English Encyclopædia of Law (2d ed. p. 102) states the rule: "But within the rule that judgments are binding upon privies as well as upon parties, only those are privies who acquire their interest in the subject-matter of the suit, subsequent to the suit." In Campbell v. Hall (16 N. Y. 575) it was held that a mortgagee was not estopped by a judgment rendered after his mortgage, in an action between a mortgagor and a prior mortgagee, the court saying (at p. 581): "The estoppel to bind the grantee or mortgagee must exist at the time of the execution of the deed or mortgage.' 99 In Masten v. Olcott (101 N. Y. 152) it was held that a judgment in ejectment against a tenant does not bind the landlord unless he is brought in and made a party in fact or in substance to the litigation, the court saying (at p. 161): "The rule that estoppels bind parties and privies is no exception. This applies only to a privity arising after the event out of which the estoppel arises, and the person in privity is bound by or entitled to the benefit of the estoppel because he comes in after the fact creating the estoppel by succession or representation to the original title or interest. (Campbell v. Hall, 16 N. Y. 575.)" App. Div.] Third Department, May, 1908. "Privity implies a relationship by succession or representation between the party to the second action and the party to the prior action in respect to the right adjudicated in the first action. When this exists the party in the second action is barred by an adjudication upon the right made in the first action." (Stamp v. Franklin, 144 N. Y. 611.) "In its general legal signification, stranger is opposed to the word privity. By privity is meant the mutual or successive relationship to the same rights of property, and privies are classified according to the manner of relationships." (O'Donnell v. McIntyre, 118 N. Y. 156, 162.) In that case it was held that the purchaser of a tax title was not in privity with the former owner. A judgment in ejectment against a life tenant is not evidence against a remainderman. (Sand v. Church, 152 N. Y. 174.) Section 1524 of the Code of Civil Procedure provides that in an action to recover real property the judgment is binding upon the party and upon every person claiming from, through or under him by title accruing either after the judgment roll is filed or after the notice of lis pendens is filed. And the following sections, 1525 and 1526, with reference to new trials in such actions, indicate that the judgment is not binding on others. The Code provision last cited clearly shows that the plaintiffs in this action could not be prejudiced by a judgment against their father in the former action, and clearly indicates that they are not privies to the father with reference to this property or bound by the evidence which was offered against him in that action. In Shaw v. New York El. R. R. Co. (187 N. Y. 186) the question was considered whether the evidence of a witness in an action against the lessor was admissible in another action against he subsequent lessee, the witness being dead, and at page 193 the court say: It is unnecessary to spend time in considering whether he lessee as a privy came within the definition of section 830 of the Code as a "legal representative," as it would clearly be covered by he common law. The court did not define the words " Legal epresentatives" or privy," nor did it determine whether secion 830 embraced all the ground covered by the common-law rule. In 25 Cyclopedia of Law and Procedure, 175, a legal repreentative is defined as follows: "In the broadest sense one who law 66 Third Department, May, 1908. [Vol. 126. fully represents another in any matter whatever; one who legally and lawfully represents another in any manner or thing of whatever nature or character it may be; any person, natural or artificial, who by operation of law, stands in the place of and represents the interests of another; any person or corporation taking the beneficial interest in property, real or personal. In the common use of the words and in its ordinary signification, a term equivalent to 'executor' or 'administrator.' However, the meaning to be attached to these words in any particular case is often controlled by the context and the intent with which they are used, as well as by the existing state of things and the relative situation of the parties to be affected." In Griswold v. Sawyer (125 N. Y. 411) the expression was construed to mean "the widow and children " of the deceased. In Leonard v. Harney (63 App. Div. 294), when used in a policy of insurance, the expression was held to mean the legatee of the insured. (See, also, Matthews v. American Central Ins. Co., 154 N. Y. 449.) It does not appear in this case that the plaintiffs at the time knew that any action was pending. Nevertheless, if they acquired their interest from a party to that action, they take title with the burden of that action upon it, and their predecessor in title having had ample opportunity, and being charged with the duty to crossexamine the witness, is presumed to have received the benefit therefrom and fully protected the interest the party now represents. The evidence in such cases is offered as affecting the subjectmatter of the action and not the parties; it does not attach to the persons and cannot be received against them except in a suit relating to the same subject-matter. If the party has transferred his interest, his estate needs no protection, but there is every reason why the party succeeding to such interest should be protected. Such testimony is evidence for or against the subject-matter of the action, in the hands of the original parties or of those who succeed them. I think, therefore, the words "or their legal representatives" should be given a broad meaning and construed as meaning "or their successors;" that is, the heirs, devisees, legatees, grantees or personal representatives. I, therefore, think that the evidence was inadmissible against the App. Div.] Third Department, May, 1908. plaintiffs. But if technically admissible it was not of the strongest nature, because the plaintiffs never in fact had an opportunity to cross-examine the witness, who at the time of the examination was in a weak, feeble condition, dying the next day; and it cannot be said that such evidence is so strong in itself that the court would have decided the case in the same way if the incompetent evidence of the defendant had not also been received to bolster it up. The evidence of the defendant was incompetent, and we cannot say that it did not prejudice the result. I, therefore, favor a reversal of the judgment. COCHRANE, J., concurred. Judgment affirmed, with costs. RODERICK MORISON, Appellant, v. THE AMERICAN TELEPHONE And TELEGRAPH COMPANY, Respondent. Third Department, May 22, 1908. explaining writing by parol — statements in plaintiff's absence. A clause in a contract giving a telephone company the right to construct its line "over and along the property" of the plaintiff "including the necessary poles and fixtures along the roads, streets or highways adjoining the property" is sufficiently ambiguous to justify the admission of parol evidence as to whether the line was run only on the highway or across the land. It is error to permit a witness to testify as to what the company's employees told him in plaintiff's absence as to the location of the line, for it is no corroboration of their testimony that they told plaintiff the same thing. KELLOGG and SEWELL, JJ., dissented in part, with opinion. APPEAL by the plaintiff, Roderick Morison, from a judgment of he Supreme Court in favor of the defendant, entered in the office -f the clerk of the county of Sullivan on the 26th day of August, 907, upon the verdict of a jury dismissing the complaint upon the merits. Lewis E. Carr and T. F. Bush, for the appellant. James J. Farren, John A. Delehanty and Melville Egleston, or the respondent CHESTER, J.: Third Department, May, 1908. [Vol. 126. On a former trial the plaintiff had a verdict, and the judgment entered thereon was reversed, on appeal, on the ground that an improper rule of damages was applied. (115 App. Div. 744.) The action was brought to recover damages claimed to have been sustained by the plaintiff by the alleged unlawful erection and maintenance by the defendant of a telephone line over the plaintiff's lands. The jury on this trial found a verdict in favor of the defendant, and from the judgment entered thereon the plaintiff appeals. The only errors alleged are with respect to the admission of evidence. On the former appeal the court said, with respect to the written grant, under which the defendant claimed the right to erect its lines over the plaintiff's land, that "the terms of the grant are sufficiently uncertain to permit oral proof to be given of its meaning, and the parties, without objection, adopted that course upon the trial." On the trial now under review the plaintiff objected to the admission of such testimony, the objection was overruled, and the plaintiff excepted. This raises the first question for our consideration. The grant referred to is as follows: "$5.00. Received of the American Telephone and Telegraph Company $5, in consideration of which I hereby grant unto said Company, its successors and assigns, the right to construct and maintain its lines over and along the property which I own, and in which I have any interest in the township of Bethel, County of Sullivan and State of New York, including the necessary poles and fixtures along the roads, streets or highways adjoining the property owned by me in said township, said sum received in full payment for such right and in full satisfaction for the trimming of any trees along the said lines necessary to keep the wires cleared at least 18 inches, and with the right to set the necessary guy and brace poles and to attach to trees the necessary guy wires, and the right to cut down trees to clear lines. "Witness my hand and seal this 19th day of March, A. D. 1900, at White Lake, N. Y. "Witness: C. J. MURRY, "R. MORISON [SEAL], land owner. "W. H. MCKENZIE." |