Graham v. Graham — 19 N.Y. St. Rep. 580

Majority

p. 580

Albert G. Graham, App’lt, v. Archibald M. Graham et al., Executors, etc., Resp’ts.^[1]

(Court of Appeals,

Filed November 27, 1888.)

Headnote

^Evidence—Admissibility op—Admission.

The plaintiff claimed that there was certain money due him by the testator for money loaned The loan was sought to be established by means of two certificates of deposit loaned on July 24, 1876, to the testator by the plaintiff. The defendant gave evidence tending to show that the two certificates were transferred to testator to apply on a farm debt; .and also that the plaintiff procured one M to draw a receipt in his handwriting under date of April 4, 1866, to which the plaintiff was to procure the signature of testator to be forged, acknowledging the receipt by testator from the plaintiff in behalf of plaintiff’s wife of the sum of $6,681.44 to be applied to satisfy certain mortgages, etc , on the P farm Beld, that the evidence was competent as an admission That it did not affect the materiality thereof, that the scheme of forgery was originally concocted to aid the plaintiff in another suit brought to compel the conveyance of the P farm to plaintiff.

Appeal from a judgment of the supreme court, general term, fifth department, affirming a judgment entered upon the report of a referee.

H. V. Howland, for app’lt; Vandenburg & Saxton, for Resp’ts.

The referee rejected the claim made by the plaintiff against the estate of his father as fictitious and fraudulent, and the evidence fully justifies his conclusion. The only point urged for the reversal of the judgment, which has any color of plausibility, arises on the exception to the admission of the testimony of Miller to the effect that in December, 1878, after the death of Henry Graham, the plaintiff procured Miller to draw a receipt in his handwriting, under date of April 4, 1866, to which the plaintiff was to procure the signature of Henry Graham to be forged, acknowledging the receipt by Henry Graham from the plaintiff in behalf of the plaintiff’s wife, of the sum of $6,681.44, to be applied to satisfy the mortgages on the Peckham farm and the balance due Peckham on the plaintiff’s contract for its purchase. The contract had been assigned by the plaintiff to Henry Graham in 1865, who held it as security for the mortgages taken up by him, and for .advances in paying the balance due Peckham on the contract. The conveyance from Peckham was thereafter made to the wife of Henry Graham at the request of the latter.

The testimony of Miller was material to the issue. The

p. 581

plaintiff’s account against the estate of his father consisted of a large number of items for property sold and money lent and advanced. Among the items was one for $2,062.50, claimed by the plaintiff to represent two certificates _ of deposit for $1,000 each, and interest to July 24,-1876, which on that day he loaned to his father, Henry Graham. Several witnesses were called by the plaintiff to establish this claim.

The defendants, on the other hand, gave evidence tending to show that the two certificates were transferred to Henry Graham to apply on the farm debt, and the referee found this to have been the fact. The evidence of Miller of the scheme on the part of the plaintiff to show by a forged receipt that this debt was paid in 1866, if credited, tended both to establish the existence of the farm debt, and also that it was unpaid in 1878, when the scheme was concocted, It also strengthened the direct evidence that the certificates were not transferred to Henry Graham as a loan, but as a payment, since it showed that there was a debt owing at that date by the plaintiff to his father. If the plaintiff was then owing a debt of many thousands of dollars to his father, which had existed since 1866, it was a circumstance bearing upon plaintiff’s claim that in 1876 his father was borrowing from him. It does not affect the materiality of the evidence that the scheme of forgery was originally concocted to aid the plaintiff in his suit brought after his father’s death to compel his mother and his brother Archibald to convey the farm to him. The transaction was an admission which was relevant to the issues in this case. The argument of the appellant’s counsel is based upon the assumption that the evidence was admitted to contradict the item of $2,000 in the account charged in May, 1874. But this was a misapprehension.

We find no error in the judgment, and it should therefore be affirmed.

All concur.