Ketchum v. Holden — 68 N.Y. St. Rep. 807

Majority

p. 807

Betsey Ketchum, Resp’t, v. James A. Holden, as Administrator, etc., App’lt.

(Supreme Court, General Term, Third Department,

Filed July 6, 1895.)

Headnote

1. Witness — Section 829 of the code.

On a reference of a claim against decedent’s estate, the agent, who represented the decedent in the transaction, may testify for the claimant as to a convei'sation between himself and decedent.

2. Same.

Upon such reference for money alleged to have been paid by mistake, the testimony of the claimant as to the time when she first learned that the decedent had paid less than the full amount of the mortgage to the insurance company is not objectionable or improper on the ground that it is indirectly testifying to a transaction or communication with the deceased, oris testifying to a' non transaction which brings it within the prohibition of section 829 of the Uode.

Appeal from a judgment in favor of the plaintiff.

King & Ashley (H. P. King, of counsel), for app’lt; J. H. Bain, for resp’t.

— Daniel B. Ketchum, being an agent of an insurance company, gave his bond to said company, with Austin H. W. Holden and William Mallory as sureties, for the faithful performance of Ketchum as agent. In December, 1894, Holden, one of the sureties was notified by the insurance company that Ketchum the agent, was short in his accounts, in an amount not definitely known, bnt supposed to be about $350. On the 17th' of December, 1894, the plaintiff executed and delivered to Holden her bond, and also a mortgage collateral thereto on property owned by her in the village of Glens Falls, for the sum of $350. The bond and mortgage were given to secure Holden against his liability as surety on ICetchum’s bond to the insurance company. The business was transacted, as appears by the evidence on the part of Holden, by Daniel A. Wilson, who was paid $38 by Holden for transacting such business. At the time of making arrangement, and the execution of the mortgage, it was understood and agreed that the mortgage was to indemnify Holden for any amount that lie might be required to pay as surety for Ketchum, within the $350, and that, if the amount fell short of that sum, the difference between the amount which he was compelled to pay

p. 808

and the $350 was to be indorsed upon the bond and mortgage. On the 24th of August, 1885, the plaintiff borrowed $500 of one Ordway, and in order to give a clear title, placed that amount witli Judge Cheritee, as her agent, with directions to satisfy Holden’s claim, so that her mortgage to Ordway should be a first claim. At that time the amount of Holden liability on Ketchum’s bond to the insurance company had not been ascertained, and Oheritree paid the whole amount of the mortgage to Holden, who at that time was ignorant of the amount of his actual liability to the insurance company, as was also tin's plaintiff and Oheritree. Subsequently, the amount of Holden’s liability on the bond was liquidated with the insurance company; and on such liquidation, it appeared that Oheritree had paid Holden $85 more than sufficient to indemnify Holden for the amount of his liability to the insurance company as surety on the bond. Holden having died, and this defendant having been appointed his administrator, the plaintiff presented a claim against the estate of Holden to the administrator for this sum of $85 and interest, claiming that that money was paid by mistake, and under the agreement between hévself and the agent of Holden at the time of the execution of the bond and mortgage, she was entitled to that amount from his estate. The administrator rejected the claim; and refused to allow the same and upon that rejection, a referee was agreed upon, with the approval of the surrogate; and upon the hearing of that reference, a report was made in favor of the plaintiff for the $85 and interest. That report was confirmed, and the plaintiff, upon such confirmation, had judgment against the defendant, as administrator, for that amount, together with the costs of the action. From that judgment the appellant appeals. The referee found substantially the above-recited facts, and as a conclusion of law from those facts makes the following finding: “I find as a conclusion of law, that the overpayment to the said Holden of $85 was by mistake, and want of knowledge of the facts; that the plaintiff is entitled to recover said sum, and interest from the time of payment. Judgment, with costs, is ordered accordingly.” This report was signed bjr the referee.

From the evidence in the case, the referee’s finding of facts seems to be fully sustained. On the trial, some objections were taken to evidence offered on the part of the respondent Daniel A. Wilson, who assumed to act as agent for Holden in obtaining the mortgage was called by the respondent, and was asked to narrate conversation between him and Holden. This objected to by the appellant, on the ground that his testimony was inadmissible, under section 829 of the Code. We see no force in that objection. Wilson was not a party to the action; nor does it appear that he was interested in the event of the action. As the agent of Holden it was clearly competent, it seems to me, to prove Holden’s declarations by him.

It is also insisted that the referee erred in refusing to strike out that portion of the testimony of the respondent wherein she states that Wilson informed her, after the death of Holden, what amount Holden had in fact paid to the insurance company, and that was

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the first information she had of that amount. This evidence was not objected to, but, after it was given, the appellant moved to strike it out. While technically such evidence might not have been competent, if objected to before it was given, yet, in view of the remote bearing, if any which it could have upon the merits of this case, and the fact that the objection came too late, we do not think it such an error as would justify the reversal of this judgment.

It was also objected that the testimony of the respondent as to the time when she first learned that Holden had paid less than the full amount of the mortgage to the insurance company was objectionable and improper, on the ground that it was indirectly testifying to a transaction or communication with Holden, or was-testifying to a nontransaction, which brought it within the prohibition of section 829 of the Code. We do not think the evidence involved any personal transactions with the deceased; nor was it that class of evidence held to be objectionable on the ground that it proves the want of a transaction with the deceased. We can see nothing in the evidence which renders it illegal, —for which the judgment should be reversed. On the whole case, we find no error committed by the referee which would authorize this court to reversed the judgment.

J udgment affirmed, with costs of this appeal against the administrator, as such, to be paid out of estate.

All concur.