Griffin v. Train

This action was brought to recover the sum of $2,500* which the complaint avers was loaned to the defendant by plaintiff’s predecessor as trustee. A jury trial was waived, and the case was submitted to the court upon certain agreed statements .of facts and offers of evidence by the respective parties, which offers were objected to by the opposing party. The facts agreed upon are as follows : On June 15, 1898, Frederick C. Train was the duly constituted and acting trustee under a deed of trust from Virginia W. Blanchard, and as such trustee was seised and possessed of a large amount of property belonging to the trust estate. That the defendant was the wife of Train. That on July 15, 1898, Train, as such trustee, drew his check upon the Mercantile National Bank of the City of New York to the order of the defendant, Mary B. Train* for $2,500, against the funds of the trust estate deposited in said bank. That the defendant thereupon indorsed the check in blank. That the same was afterwards indorsed by said Frederick C. Train in his individual name, and was collected by him from the bank upon.

The following evidence was offered by the plaintiff and received in evidence under objection by the defendant: That immediately after the death of said Frederick C. Train there was found among the papers of the trust estate in his desk a memorandum in his own handwriting, which had the surnames of different people thereon,. and opposite the name an amount of money, and underneath a date. That in some instances in that statement there were merely initials and no name at all. That one item in said statement was as follows:

“M. B. T.—

“June 15, 1898. §2,500."

It was admitted by the plaintiff that said statement was made without the knowledge, and not in the presence, of the defendant. The admission of the above memorandum was objected to by the defendant upon the grounds that it was incompetent, immaterial, and irrelevant, as hearsay, and as a memorandum made by the deceased trustee' in his own favor, without the knowledge, and not in the presence, of the defendant, and, as appears from the face thereof, not made in the regular course of business, or at the time of the alleged transaction. This objection was overruled, and the- evidence received under exception. Another similar memorandum was found in the desk of said deceased among the papers belonging to the trust estate, upon which the same item appeared opposite the same date and under the- initials “M. B. T.” The same admissions were made by the plaintiff as to this entry. It was admitted in evidence under the same objection, and an exception was taken to such admission by the defendant. The plaintiff also offered to show that all the other items-upon the said memorahda had been proven to be debts owing to said trust estate, and that all the other initials upon the said memoranda meant certain persons, who admitted that they owed the estate the amount set down in the memorandum opposite their respective initials. This was objected to by the defendant upon the grounds that it was incompetent, immaterial, and irrelevant, being offered "in explanation of a memorandum not binding upon the defendant, and not a part of the res gestae. The objection was overruled, and such, evidence admitted, and exception taken thereto by the defendant. Then the defendant offered to show by herself as a witness an explanation of the whole transaction, that she never had any of the money represented by the said check, and that she never at any time-

We are of opinion that the conclusion reached by the learned court below is clearly correct, although we are unable to concur in the reasoning adopted to reach such a result. The entries in the memoranda kept by the deceased trustee do not constitute the same declarations against his interest, so as to admit of their being received in evidence to establish the existence of a debt in favor of the trust estate kgainst a third party. The existence of an indebtedness against a third party to the trust estate relieved the trustee from liability to that extent to the estate which he represented, as it accounted to the extent of the indebtedness for the funds of the trust estate which had come to his hands.. Instead, therefore, of its constituting a declaration against interest, it is a declaration in his own favor and in his interest, and as such was not admissible for the purpose of establishing the existence of an indébtedness in favor of the trust estate against the defendant. The general rule is that entries and memoranda made by deceased persons in the ordinary course of professional and official employment are competent as secondary evidence of the facts contained in them, where no interest exists to misrepresent or misstate the fact. Such entries are admissible on the ground of necessity. Livingston v. Arnoux, 56 N. Y. 507 . The deceased was not a public officer, nor were the entries made in the course of official business, which have been held to furnish a sufficient basis for the admission of entries as evidence to establish the performance of official acts. Between the deceased trustee and the defendant, if an obligation was created, it was that of debt- or and creditor, and stands upon no higher footing that such a relation between individuals establishes. The declaration of indebtedness, therefore, made by the trustee, not only relieves him and his estate to that extent from a devastavit of the trust estate to the amount of the indebtedness, but it is a declaration in his own favor of the existence of the debt. It is too well settled to need authority that a declaration in one’s own favor is not admissible in evidence, nor are such declarations of deceased persons admissible unless against interest. Putnam v. Lincoln Safe Deposit Co., 87 App. Div. 13 , 83 N. Y. Supp. 1091 . The following cases: Chenango Bridge Co. v. Paige, 83 N. Y. 178 , 38 Am. Rep. 407 ; Bump v. Pratt, 84 Hun, 201 , 32 N. Y. Supp. 538 ; Matter of Woodward, 69 App. Div. 286 , 74 N. Y. Supp. 755 ; Lyon v. Ricker, 141 N. Y. 225 , 36 N.

It follows, therefore, that the judgment should be affirmed, with costs. All concur; LAUGHLIN, J., in result.