Johnson v. Cowdrey — 46 N.Y. St. Rep. 546

Majority

p. 546

James M. Johnson et al., App’lts, v. Samuel F. Cowdrey, Impl’d, Resp’t.

(City Court of Brooklyn, General Term,

Filed June 27, 1892.)

Headnote

Marriage—Evidence—Private marriage record.

A private record of marriages kept by a minister who has since died is admissible in corroboration of other proofs of a marriage.

Appeal from judgment dismissing the complaint.

The action is in ejectment. The plaintiff made title by the conveyance to him by the registrar of arrears of the city of Brooklyn pursuant to a sale for the unpaid general taxes of 1885 and 1886.

The sale was on July 11, 1888. Notice thereof was served on all who could lay claim to title or interest, excepting the state. The defendant Cowdrey became the grantee and went into possession of the premises after the sale, namely, on October 14, 1889.

The history of Cowdrey’s alleged title is in brief this: Paul Pontau owned the land; he mortgaged it for $3,300 in 1857; died April 12, 1865, leaving a will devising it to his wife Nannette for life, remainder in fee to his adopted son Anthony; Anthony, however, died before he died; so the legislature by an act, chapter 558 of the Laws of 1871, vested the fee in the widow; she made a will which at the time of her death (June 6, 1878) vested the title in her stepson James M. Johnson, if it still subsisted as a will'; but she (it is claimed) had married one Harrison-after making such will, and by this fact the will was revoked under the statute, so that she died intestate, and the title escheated to-.the state, she leaving no heirs, but the stepson entered into possession. After her death the said mortgage by Paul Pontau was foreclosed (on J une 12, 1880) against several fictitious names by action, neither the state nor the stepson being made a party; and from the sale thereunder the chain runs down to defendant Cowdrey, his predecessors being Crane, Bates and Deinike. The said will of Nannette Johnson having been probated in Charleston, S. C., was proved and recorded in the Kings county surrogate’s court on July 20, 1880.

The trial judge found that the said Nannette Johnson did marry Harrison, and that therefore her will was revoked, and the state became the owner; and decided that the plaintiff got no title by the deed of the registrar of arrears for the reason that lands of the state cannot be sold for taxes.

W. J. Gaynor and Ira Leo Bamberger, for app’lts ; S. F., F. H. & Harry Cowdrey, for resp’t.

The court on the trial of this action, admitted in evidence the private record kept by Rev. Jacob Legare, pastor of the Morris Street Baptist Church in Charleston, South Carolina,- showing a marriage between James Harrison and Hannette Johnson on March 18, 1873. The entry appeared in a book kept by Mr. Legare, and under the heading: ‘‘Marriage Becord; marriage of church members and others,” which book was produced on the argument of this appeal, and exhibited to the court. The record was proven to be in the handwriting of Mr. Legare and the marriages were entered in consecutive order. It was not offered as, or claimed to be, a church record, but simply as set forth in the heading. Mr. Legare died October 6, 1885, and the book had thereafter been in the custody of his widow who was a witness on the trial.

There is other testimony tending to show that James Harrison and Nannette Johnson were married by Bev. Mr. Legare at or about the date set forth in the memorandum, and showing that they lived together in Charleston as husband and wife for about five years after such date, when Mrs. Harrison died. The record was offered in corroboration of the other proofs of marriage in the case.

We are of opinion that the book was properly admittted in evidence. It was not offered as a church record, and did not purport to be such, and therefore the authorities cited by the learned counsel for the appellant do not apply; neither is the case, Blackburn v. Crawfords, 3 Wall., 191 , cited by the respondent, in point. The book was properly admitted as a private writing kept by a professional man in the usual course of his vocation. Proof was made that the entries were in the handwriting of Mr. Legare, that it was a record kept of marriages at which he had officiated, and that he was dead. In the case of Bradford v. Bradford, 51 N. Y., 669 , cited by appellant, a record kept in a Unitarian Church in Balia Car, Ireland, was produced by the pastor, Mr. Getty, who did not know the parties, and there was no proof who made the entry, as would seem from reading the printed case, and the court of appeals held that the record was properly rejected. It was offered as a church record, and not a private memorandum kept by a deceased clergyman. The book offered in the case before us, in connection with the other facts proven tending to show a ceremonial marriage, was admissible in corroboration of such evidence. Many cases could be cited which seem directly in point, where writings made by parties since deceased have been so admitted; the entry of a baptism by a clergyman as evidence of such baptism, Kennedy v. Doyle, 10 Allen, 161 , the books of a physician to prove an account, Augusta v. Windsor, 19 Maine, 317, the memorandum of a bank runner or messenger, Welsh v. Barrett, 15 Mass., 381 , the same of a teller of a bank, Sheldon v. Benham, 4 Hill, 131 , the same of a cashier, Nichols v. Goldsmith, 7 Wend., 162 ; the entry of an attorney in his register, Fisher v. Mayor, 67 N. Y., 73 ; Leland v. Cameron, 31 id., 115 ; Patteshall v. Turford, 3 B. & Ad., 890, books of account, Gale v. Norris, 2 McLean, 471 , books of a notary. Nicholls v. Webb, 8 Wheat., 326 ; Halliday v. Martinet, 20 Johns., 168 .

p. 548

In the case of Fisher v. Mayor, 67 N. Y., 73 , Judge Andrews says, “The facts and circumstances proven, independently of the-entry, rendered it probable that an order of confirmation was made, and, in connection herewith, the entry of the corporation counsel was, after his death, admissible secondary evidence of the fact." So in this case, the facts and circumstances proven independently of the entry rendered it probable that a marriage ceremony had been performed, and the record of the minister was, after his death, secondary evidence of the fact. Judge Gray wrote as follows, in the case of Kennedy v. Doyle, 10 Allen, 168 : “An entry made in the performance of a religious duty is certainly of no less-value than one made by a clerk, messenger or notary, an attorney or solicitor, or a physician in the course of his secular occupation.” In no authority does it appear that the court placed its. ruling on the ground that the writing was ancient. In the case of Hart v. Wilson, 2 Wend., 513 , a memorandum of a deceased notary was admitted after the lapse of only ten years from the date when it was made.

The judgment appealed from must be affirmed, with costs.

Osborne, J., concurs.