Geisshan v. Wolf — 11 N.Y. St. Rep. 306

Majority

p. 306

Pauline Geisshan, Resp’t, v. Lob Wolf et al., Def’ts, and Francis C. Cormier et al., App’lts.

(Supreme Court, General Term, First Department,

Filed October 27, 1887.)

Headnote

1. Evidence—Competency—Code Civ. Pro., § 829.

A judgment creditor derives title through his judgment debtor within-the meaning of Code Civil Procedure, section 829, and in an action brought against him by the executor of 'the deceased debtor, said creditor is not a competent witness as to transactions with the deceased affecting said title.

2. Same—Op the delivery op bond and mortgage.

The execution of a bond and mortgage being admitted: Held, that sufficient proof of the delivery of the mortgage was furnished by showing that it had been placed on record; that a delivery of the bond might be inferred from the fact that a mortgage was delivered referring to the bond as a valid, and subsisting obligation.

Appeal from special term judgment of foreclosure.

Thos. H. Rodman, Jr., for app’lts; Leopold Turk, for resp’t.

—This action was brought to foreclose a mortgage made by Lob Wolf to Daniel Heyman now deceased. Wolf himself was the executor of Hej-man’s will, and assigned the mortgage to the plaintiff herein. The appellant, Francis 0. Cormier, is a judgment creditor, of Lob Wolf, whose judgment, however, was recovered subsequently to the giving and recording of the mortgage. The defense upon which he chiefly relied at the trial was that the mortgage was fraudulent in its inception and without consideration, of which facts the plaintiff had notice.

p. 307

The proof failed to establish this defense, but the appellant complains that he was erroneously deprived of the benefit of certain evidence which would have tended to make out the alleged fraud, by the exclusion of the testimony of Lob Wolf as to personal transactions with Daniel Heyman, the deceased mortgagee, relating to the consideration for the mortgage. The trial court held that such testimony came within the prohibition of section 829 of the Code of Civil Procedure. The argument to the contrary, in behalf of the appealing creditor, is that he does not derive title through Wolf, but against Wolf, and in hostility to him.

In the case of Taylor v. Meldrum (6 Civ. Pro., 235), however, the general term of the fourth department expressed the opinion that a judgment creditor derived title through his judgment debtor within the meaning of this section; and this view seems to us correct. It may well be that the creditor has some rights against third parties which would not be available to the debtor; but it is through or by means of the acts of the debtor that the appellant Cormier has any standing in the present litigation.

The answer admitted the making and recording of the bond and mortgage, but denied that either was ever delivered. A certified copy of the mortgage as recorded in the register’s office was put in evidence; but the bond was not produced If the defense had been payment, the non-production of the bond, unexplained, would have been fatal to the plaintiff’s case. Bergen v. Urbahn, 83 N. Y., 49 . Here, however, there was no such plea. The execution of the bond and mortgage was expressly admitted, but the delivery of either instrument was denied. Sufficient proof of the delivery of the mortgage was furnished by showing that it had been placed on record; and in the absence of any other evidence on the subject, we are inclined to think that a delivery of the bond may be inferred from the fact that a mortgage was delivered referring to the bond as a valid and subsisting obligation.

The judgment appealed from should be affirmed.

Van Brunt, Ch. J., and Daniels, J., concur.