
    Gourlay and another v. Hamilton and others.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 23, 1886.)
    
    1. Witness—Evidence—Competency op witness under section 829 op
    the Code op Civil Procedure.
    Interest, in the sense conveyed by section 829 of the Code of Civil Procedure, means a legal interest in the judgment at the time the witness is sworn.
    2. Title—Real estate.
    When a person takes a title in the name of another to evade responsibility in any way, if his interest is not evidenced by writing, that other person owns the title absolutely by statute.
    
      W. H. Blair, for appellants, Gourlay and another.
    
      Wm. McKean Marline, for respondent, Hamilton and others.
   Barnard, J.

The witness, Cook, although a defendant, had no interest in the event of the action, and he did not testify in favor of a co-defendant, who derived a title through him. The action was brought to foreclose a mortgage given by the defendant, Hamilton, to the plaintiff’s testator, and Mrs. Hamilton held the fee of the land.

Cook was her tenant, in possession of a portion of the premises, and proof was given tending to show that Cook had said that he had caused the title to be taken in the name of Mrs. Hamilton, but that it was done to escape the rights of his wife therein if the deed was taken to himself.

The defendant, Cook, had left the occupation of the premises before the trial. Cook’s interest must be made out either because he was a tenant defending his own premises, or that he was the equitable owner of the property.

I do not deem either position sound. Cook had left the premises at the time he was offered as a witness, and interest, in the sense conveyed by section 329 of the Code, means a direct legal interest in the judgment at the time he is sworn.

This he had not at the time of the trial. When a person takes a title to evade responsibility in any way in the name of another, that other owns the title absolutely by statute if his interest is not evidenced by writing. No such writing is proved, and the presumption is in favor of the competency without proof of that fact. As the evidence stands, if credited, Cook has taken a title in Mrs. Hamilton, in the expectation, without the power of enforcement legally or equitably, that Mrs. Hamilton will hold the title for him and give it up to him when required. Such a condition of the situation would affect Cook’s credibility, but would not amount to a legalo interest. The judgment in favor of, or against, Mrs. Hamilton would not strengthen his right as against Mrs. Hamilton. A judgment against Mrs. Hamilton would render it impossible for her to give up the title to Cook if she wished to do so. With the objection to the testimony of Cook removed, the case is fully made out without his testimony.

The witness, Cohn, and his clerk, Howes, both testify to the usury by the admission of the deceased testator, and while this testimony is affected by the fact that Cohn has a similar defense to a foreclosure action as against the plaintiffs, they both seem to be truthful witnesses. The mdst conclusive evidence is that of the witness, Gildersleeve.

He testifies that he went with the deceased to get Mrs. Hamilton to sign an affidavit that the mortgage was for $1,500, with a view of a sale of the mortgage. Mrs. Hamilton refused, because she had received less than $1,300 for the $1,500. Gourlay then told this broker that her claim was true. He had “received a certain amount of money; (what she claimed, six hundred and some odd dollars.’ ”

The judgment should, therefore, be affirmed, with costs, i Cullen, J., concurs; Dykman, J., not sitting.  