Denham v. Jayne

Headnote

Evidence—Code, § 399. 1

Appeal from an order of the Kings.county Special Term, confirming the report of a referee.

The defendants held certain lands in trust for Maria, the wife of Mark Cornell, and to secure to the defendants certain advances of money made by them from time to time for account of Mrs. Cornell. A reference was ordered to determine the amount of these advances, and from an order of the Kings Special Term, confirming the referee’s report thereon, the plaintiffs appeal. The referee found $4,700 due the defendants; the plaintiffs conceded that the advances, with interest, amounted to $3,262, and disputed the balance. Mrs. Cornell was the original plaintiff in this action, the present plaintiffs having, on her decease, been substituted as her representatives. Mrs. Cornell signed and verified the first complaint, in which it was set forth that the amount due the defendants was $5,000; this complaint had been prepared under the direction of the defendant Jayne, who, as a witness before the referee (Mrs. Cornell being then deceased), testified that she signed the affidavit in his presence; he also gave testimony going to show generally that he was acquainted with her handwriting. The first complaint had been amended, and the amended pleading did not contain the admission relied upon by the defendants; the testimony of Jayne failed to show that he was acquainted with Mrs. Cornell’s handwriting. The referee admitted the complaint as evidence of the amount due the defendants Jayne and Mercer. Held, that the evidence of Jayne, a party to the action, that he had seen Mrs. Cornell sign it, was evidence of a transaction between them, and was not admissible under section 399 of the Code.^[1]