
    James O. Bloss, Resp’t, v. Richard J. Morrison, Public Administrator, etc., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 23, 1888.)
    
    1 Practice—Court or referee has no power to alter evidence after CASE HAS BEEN SUBMITTED.
    The court or referee has no power, after a cause has been submitted for decision, to strike out evidence which has been improperly admitted, unless the right has been specially reserved. The record of the evidence is closed with the submission of the case, and cannot he thereafter altered except by the consent of the parties.
    
      % Evidence—Competency of.
    The assignor of the disputed claim against the estate of the deceased, on the reference, was asked: “Do you know whether your husband, at any time, had a written acknowledgment of any indebtedness from Mr. Van Valkenburgh (the deceased) to him.” Held, that the evidence called for was of a distinct fact, and did not necessarily involve any personal communication.
    Appeal from an order of special term confirming referee’s report in favor of the respondent.
    
      Hoffman Miller, for app’lt; John A. Garver, for resp’t.
   Van Brunt, P. J.

The respondent in this action having, presented an assignee a claim for money loaned against tho estate of one Aaron Van Valkenburgh, deceased, which estate was represented by the defendant, such claim was disputed, and an order of reference was made to hear and determine the controversy between the parties,

After a trial before him, the referee reported in favor of the respondent.

The appellant claims that the referee erred in his rulings in respect to certain testimony offered on behalf of the respondent to support the claim presented by him.

Under a stipulation made between the attorneys of the parties, the evidence of Mrs. Huldah V. V. Turrell, the assignor of the claim, was taken out of court before a. notary public, and was used upon the trial before the referee.

This evidence was simply presented the referee, and considered as having been read in evidence.

Among other questions asked of this witness, appearing in said deposition, was the following:

Do you know whether your husband, at any time, had a written acknowledgm ent of any indebtedness from Mr. Van Valkenburgh to him?

This question was objected to at the time of the taking of the deposition, as incompetent, and aS involving a personal transaction with the deceased, which objection was overruled, and an exception taken.

This objection does not seem to be well taken. The witness might have seen such a paper in her husband’s possession, arid upon proper proof of its loss, could have testified as to its contents.

It maybe that at the time of asking the question a proper foundation had not been laid for the introduction of such paroi proof, but no objection of this kind was taken.

It, in no sense, involved a personal transaction between the witness and the deceased.

It was evidence of a distinct fact, and did not at all necessarily involve any personal communication or transaction with the deceased.

The answer of the witness was as follows:

l< My husband had a written acknowledgment of indebtness of $14,000 from Mr. Van Valkenburgh. I know this,, because some time after my husband’s death, his brother, Henry Turrell, handed to me a paper which he said contained an acknowledgment of $14,000 which Mr. Van Valkenburgh owed to my husband. Mr. Henry Turrell said that he and his sister, Mrs. Shaffer, who were the only next of kin of my husband, were willing that I should have this money for my own, and he formally presented his one-half interest in it to me at that time.”

At a subsequent hearing before the referee and before the reference was closed, a motion was made by the appellant to strike out all of the answer of the witness above quoted, commencing with the words: “I know this, because,” which motion was denied, and exception taken.

That this part of the answer was no evidence at all, and was clearly incompetent, requires no argument. Indeed, the referee so concluded, because in his report he expressly states that he disregarded this evidence, which he seems to think he had a right to do, because the evidence was taken in his absence on stipulations between the parties, and the objections of counsel and the rulings of the referee thereon were recorded pro forma.

In this we think that the referee erred. His attention was directly called to this evidence which has been taken in his absence, by a motion to strike it out, which motion was denied and an exception taken.

This motion should have been granted, and upon its refusal the appellant had a right to rely upon the exception which had been taken to the refusal to grant his motion.

This testimony was very material, and calculated to strongly effect the mind of the referee if he deemed the testimony competent and after having once ruled that it was competent, as he did when he denied the motion to strike out, in the absence of the parties and without notice, after the case has been submitted for decision, and after, upon examination of the evidence, he had come to the conclusion that the evidence was not necessary to the plaintiff’s case, the referee has no power to deprive the appellant of an exception upon which he may have relied by stating in his report that he has disregarded the objectionable evidence.

Any other rule might deprive a party of a perfectly good cause of action or defense, without an opportunity to be heard.

Whatever may be the power of the court or referee during the progress of a trial as to striking out evidence, which has been improperly admitted, no such right can exist after a cause has been submitted for decision, unless it has been especially reserved.

The record of the evidence is closed with the submission of the case, and cannot be thereafter altered, except by the consent of the parties.

It may be that in the case at bar, the erroneous ruling of the referee made no difference in the defense offered by the appellant, but of this we cannot be ■ certain and even the seeming recognition of the right under discussion as possessed, by either a court or referee, would be so danger-our to suitors, that in this instance it cannot pass unchallenged.

For the error above-mentioned me order and judgment appealed from, must be reversed, and a new trial of the controversy ordered before another referee, with costs to the appellant to abide the final event.

Brady and Daniels, JJ., concur.  