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Emma J. Richardson and Benjamin Nicoll v. Emily Emmett.

were lodged by Richardson with the Atlantic Trust Company as collateral security for a loan, and after his death the stock was sold to settle the balance remaining unpaid on the loan, resulting in the surplus now the subject of controversy. The learned referee found, in a short form of decision, that the defendant was entitled to recover, and judgment was entered accordingly, which was subsequently unanimously affirmed at the Appellate Division, and the only questions presented on this review are appellants' exceptions taken to the admission and rejection of testimony.

The defendant, while on the witness stand, was shown four stock certificates representing the 350 shares which were issued in the name of Emily Emmett by the direction of Richardson, and attention being particularly called to the date of their issue, August 21, 1885, and the date of the cancellation marks running from November 12 to November 22, 1890, the witness was asked: "Were those certificates at any time between those two dates (August, 1885, and November, 1890) in your possession?" Plaintiffs objected to the question as incompetent under section 829 of the Code, the objection being stated in full. But the objection was overruled and an exception taken, whereupon the defendant answered: "Yes, sir." The witness was again asked: "About what date were they in your possession?" This was followed by the same objection, ruling and exception, and the answer was: "About the autumn of 1885. Q. Where?" The same objection, ruling and exception followed, and the witness answered: "110 East Houston street," which was Richardson's home and where the defendant also resided.

This ruling of the learned referee is said to have been based upon the decision of this court in Simmons v. Havens (101 N. Y. 427), and is claimed to be fully justified by it, although it is quite apparent that very different use was made of the evidence in the case under consideration than the court thought possible in the Simmons case. In the latter

Emma J. Richardson and Benjamin Nicoll v. Emily Emmett.

case the theory of plaintiff's action was that her mother had conveyed to her the real estate upon which both of them resided, and that, subsequently, her mother, becoming angry, had taken the deed from the bureau drawer where it was kept and destroyed it, and conveyed the real estate to her brother. During the trial plaintiff, being on the witness stand, testified without objection that Havens "brought the deed to the house and threw it in her mother's lap, and, says he: "There's Helen's (the witness') deed, and Mr. Lamport will be down and take the acknowledgement.' She asked him if he had read the deed, and he said. he had, that he felt interested who should have the premises back of him, and he had read the deed and it was all right. I did not read the deed then; I saw it in mother's possession and his." Then came the question which was considered by the court:

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"Is it the same paper that subsequently came into your possession and which you read?" Defendant objected to the evidence, but it was received and an exception taken. "A. Yes, sir. Q. And the same paper you exhibited to Simmons and John Thompson? A. Yes, sir." When this court came to a consideration of the question presented by the foregoing exception, it had already, and after a careful review of the testimony, reached the conclusion that the judgment in favor of the plaintiff should be sustained, and the question actually presented was whether this ruling, under the circumstances, required a reversal of the judgment, and the reasoning of the court in effect was that no harm had resulted from permitting the witness to state that the deed was in her possession because, as the court said: "She was not asked, and did not state, from whom she received the deed. The plaintiff might have received the deed from some third person." The theory of the court was that no harm was done, and, therefore, the judgment should not be reversed, not that the testimony was competent either to prove or to contribute toward establishing the fact of

Emma J. Richardson and Benjamin Nicoll v. Emily Emmett.

delivery. Such a holding, had it been made, would have seriously impaired the usefulness of section 829 of the Code, but it was neither made nor was it intended, for the argument, all of which I have quoted tended to show merely that no harm had resulted, and hence that a judgment right on the merits should not be interfered with.

That such evidence is not competent proof to establish the fact of delivery appears from the later case of Clift v. Moses (112 N. Y. 426) in which case it was important for the defendant to show the delivery of the notes to him—just as in this case it was necessary in order to make out a gift to show a delivery of the stock certificates to Miss Emmett-and these questions were asked of Moses: "Have you ever had the notes in suit in your possession?" "Did you see the notes in suit in November or December, 1875?" "Did you see the notes in the possession of your wife when Mr. Pardee was not present, or in your wife's hands when Mr. Pardee was not present?" These questions were objected to and excluded under section 829 of the Code, and this court, in an opinion in support of this position by Judge Andrews, said: "The primary question is whether the evidence sought to be elicited by the questions put to Moses, touching the possession of the notes prior to Pardee's death, was evidence concerning a personal transaction between the witness and Pardee. The evidence was very material upon the issue of payment. If the notes were in the possession of Moses prior to Pardee's death, the presumption of payment would be very strong, and if he saw them in the possession of his wife in 1875 or 1876, or subsequently during Pardee's lifetime, it would be a strong circumstance in corroboration of her testimony. The questions do not on their face call for a disclosure of a personal transaction of the witness with Pardee; and if it be the true construction of section 829, that a party may be a witness against the representative of a deceased party as to any fact which is not a narrative of an occurrence between the witness and the deceased, or if any

Emma J. Richardson and Benjamin Nicoll v. Emily Emmett.

fact may be proved by the survivor which does not involve on its face a direct statement of a transaction or communication between himself and the deceased, then the evidence of Moses was improperly excluded. But this literal construction of the section has not been adopted by the courts. It has been held with general uniformity that the section prohibits not only direct testimony of the survivor that a personal transaction did or did not take place, and what did or did not occur betweeen the parties, but also every attempt by indirection to prove the same thing, as by negativing the doing of a particular thing by any other person than the deceased, or by disconnecting a particular fact from its surroundings and permitting the survivor to testify to what on its face may seem an independent fact, when in truth it had its origin in or directly resulted from a personal transaction." By this process of reasoning the court necessarily reached the conclusion that if Moses had possession of the notes such possession must have originated in or resulted directly from a personal transaction with Pardee, and that unless the tendency of the evidence was in that direction it was necessarily immaterial, for it could have nc value except in so far as it would tend to support an inference of fact that the notes were delivered to Moses by Pardee.

So, in this case, the possession by Miss Emmett of the certificates of stock in the autumn of 1885 had no materiality whatever, except for the purpose of establishing a delivery to her of the certificates after they had been issued in her name by the railroad company. And it tended to establish such a delivery and to permit an inference as to the nature of the transaction between her and Richardson when considered in connection with the fact that he had first caused stock which he owned and had paid for to be issued in her name by the railroad company. Under those circumstances, testimony by her to the effect that almost immediately afterward she had these certificates in her possession was in its effect testimony of both transaction and

Emma J. Richardson and Benjamin Nicoll v. Emily Emmett.

communication, as Judge Landon so well said in Viall v. Leavens (39 Hun, 291), in writing an opinion for the court holding it not permissible for an interested party, the decedent's wife, to testify that a deed made by her husband to a third party was delivered to her by the decedent, and that she retained possession of it, with short intervals, down to the time of the trial. Judge Landon said: "She therefore testified 'concerning both transaction and communication, though she did not directly say she had either. The fact she spoke of was in no just sense independent of and extrinsic to the personal transaction and communication, but derived its chief significance from its dependence upon and intrinsic connection with both."

The reasoning of Judge Landon in that case as to the necessary effect of such testimony can have no better illustration than this case affords. When the learned referee came to consider whether the evidence established a complete and valid gift of the 350 shares of stock to Miss Emmett by Richardson he opened his discussion of the important element of delivery which must be established in such cases in these words: "In the present case the physical delivery of the thing given, being certificates of stock standing in the name of the donee put in her name by the donor, is, in my judgment, sufficiently proved by the evidence that the certificates of stock were in Richardson's possession late in the month of August and were shortly afterwards in the possession of Miss Emmett. There is no circumstance suggested from which a surreptitious delivery to her could be inferred, or a delivery by any person than by Richardson himself or some one acting under his instructions." We see, therefore, that the referee regarded this evidence as conclusively establishing the delivery of the stock by Richardson to Miss Emmett.

In the Simmons case (supra) the court thought no harm was done by admitting the testimony asserting possession, for the reason that, for aught the evidence disclosed, plaintiff

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