Brown v. Mailler — 12 N.Y. 118

Majority

p. 118

Brown, survivor, &c., against Mailler and others.

Headnote

The declarations of the intestate touching the title to personal property are evidence against his administrator. Per Denio, J.

But they are not 'competent evidence against other parties who claim title under the deceased. Per Denio, J.

Where the plaintiff, as survivor, sought to recover the proceeds of personal property sold hy the defendants on commission, alleging that he and the deceased owned it as copartners; and the defendants denied that the plaintiff had any interest in the property, or that he and thedeccased were copartners, alleging that the latter was the exclusive owner of the property, and that the proceeds belonged to and were claimed hy his administrator; Held, that the declarations of the deceased, that he and the plaintiff were copartners and owned the property as such, were not evidence against the defendants.

Appeal from a judgment of the supreme court, in the 6th district. The plaintiff claimed to recover about five hundred dollars, being the proceeds of a quantity of butter which he had forwarded to the defendants to sell on commission. It was alleged in the complaint that he butter, or the greater part of it, belonged to the daintiff Brown and Milton Baney as copartners; that Baney lied in October, 1851, and that shortly afterwards the daintiff, as surviving partner, sent the butter forward to

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be sold; that the defendants, as his agents, sold it, and that the proceeds, after deducting the commissions, amounted to the sum claimed, which the defendants had refused to pay to the plaintiff. The answer admitted that the plaintiff sent the butter to the defendants to sell; that they sold it and that the proceeds amounted to the sum stated; but it denied that the butter belonged to the plaintiff and Raney as partners, and alleged that it belonged solely to Raney in his lifetime; and that in forwarding it to the defendants for sale, after Raney’s death, the plaintiff acted as the agent of the estate of Raney, no administrator having then been appointed; that S. Godfrey had subsequently taken out letters of administration on the estate of Raney, and claimed the money in the defendants’ hands, as assets belonging to the intestate’s estate, and the defendants averred that it belonged to him as administrator, and that the plaintiff had no interest in it. There was a reply denying the new matters set up in the answer.

The cause was tried in October, 1852, before Mr. Justice Mason. Evidence was given on both sides, touching the existence of the alleged partnership between the plaintiff and Raney, which was the principal point litigated on the trial. It was shown that Godfrey had been appointed administrator of Raney. The plaintiff offered to show that Raney, in his lifetime, and during the summer of 1851, in which the butter was made, had stated that he and the plaintiff were in partnership in farming business, and that they owned the butter in question as such copartners. The defendants’ counsel objected to this evidence, and it was excluded by the judge, and the plaintiff’s counsel excepted. There was a verdict and judgment for the defendants, which was affirmed at a general term, and the plaintiff appealed. The case was submitted on printed briefs.

H. R. Mygatt, for the appellant.

Warren Newton, for the respondents.

If this had been a controversy between the plaintiff and the administrator of Raney, the declarations of the intestate would have been admissible in favor of the f plaintiff, on account of the privity subsisting between the deceased and his representative. (1 Greenl. on Ev., § 189.) So if Raney were living and had been joined in the action with the present plaintiff, the declarations of either would have been good evidence against themselves to show that they were partners, and, after the partnership had been established, the declarations of either of the partners would have been admissible against them both. If the defendants could be considered as claiming title under Raney, the law of evidence, as- understood in some courts, would admit the declarations of the former to be given in evidence to impeach the defendants’ title. (1 Greenl. Ev., § 190.) But the cases in this state are the other way, and the question has been settled against the competency of such evidence in the court of last resort. (Paige v. Cagwin, 7 Hill, 361 , 369.) But the defendants in this action are not in privity with and do not derive their title from Raney. The partnership which the plaintiff alleges to have existed between himself and Raney, and the fact that the butter in question was the property of that firm, were facts that the plaintiff, under the issue, was bound to maintain against the defendants, who were not liable to account for the proceeds of the butter, except to the party who could make title to it as having been the owner when it was sold. The fact that it was forwarded to the defendants by the plaintiff was evidence bearing upon that question in Ms favor, but it seems that the defendants gave evidence tending to show the contrary, and to prove that the plaintiff acted in that respect on behalf of the estate of the deceased, Raney. Under this state of the controversy, I am clearly of opinion that it was not competent for the plaintiff to avail himself of the declarations of Raney. He stood in the relation of a stranger

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to the defendants, and his declarations fall under the denomination of hearsay.

The judgment should be affirmed.

All the judges concurred except Ruggles, J., who took no part.

Judgment affirmed.