
    Hiram Maxfield, App’lt, v. Theresa M. Hoecker, Impleaded, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23,1888.)
    
    1. Witness—Degkbe of cbedit to be given to.
    The question of tie degree of credit to be accorded to witnesses is one which must, in most cases, be committed to those judges of the fact before whom the witnesses are produced, and by whom their appearance on the stand, and the manner of giving their testimony, may be observed and considered.
    2. Evidence—Subsequent act when admissible.
    Any subsequent admission—declarative by act or word—of the party which tends to show the motive, intent or character of his previous acts, which is in question (here compounding a felony), is always admissible for that purpose. This is the rule even in criminal cases, and even though the subsequent act may constitute a distinct and separate crime.
    Appeal from a judgment entered on findings and decision of the court at special term dismissing the plaintiff’s-complaint.
    
      T. M. Howell, for app’lt; W. F. Cogswell, for resp’t.
   Dwight, J.

The action was to foreclose a mortgage of real estate. The answer alleged duress and that the mortgage was given to compound a felony. The court found the second defense established ; and the judgment dismissed the complaint, but without costs, since the parties were in pari dilicto.

The question principally argued on this appeal is, that of the sufficiency of the evidence to support the finding of fact upon which the judgment is based.

A careful examination of the evidence in the case satisfies us that the judgment cannot be disturbed on this ground. The burden of proof was undoubtedly on the defendant; she was required to establish her defense by a very clear and satisfactory preponderance of credible evidence.

This she has done by the direct evidence on her part which relates to the principal transaction of January, when the mortgage was given, if that evidence was not so inherently improbable or so self-contradictory as to render it unworthy of credit. It was evidently accepted as credible by the court below, and the question of the degree of credit to be accorded to witnesses is one which must, in most cases, be committed to those judges of the fact before whom the witnesses are produced, and by whom their appearance on the stand, and the manner of giving their testimony, may be observed and considered.

But aside from the direct evidence bearing upon the principal transaction, the evidence, oral and documentary, of subsequent transactions between the parties, bears very strongly, if it is not of itself conclusive, upon the question of the character and intent of the principal transaction.

The surrender by the plaintiff of the entire amount of forged paper then producible, and the agreement in writing to deliver up all other paper of the same character which he should afterwards find, was. evidence of the character referred to and was uncontradicted. Objections were made to the admission of this class of evidence,, and the exceptions to the rulings of the court by which it was admitted present the only remaining question in the case.

The evidence was clearly competent. It was evidence of facts which the court was justified in considering as part of the same transaction as that in which the mortgage was given; as performances on the part of the plaintiff of that which he undertook to do in consideration of the giving of the mortgage. It was a later transaction from which light might be reflected upon the earlier; from which the purpose and intent of the earlier transaction might, in some measure, be inferred. It was competent as evidence in the nature of an admission, and any subsequent admission (declarative by act or word) of the party which tends to show the motive, intent or character of his previous act, which is in question, is always admissible for that purpose. This is the rule even in criminal cases, and even though the subsequent act may constitue a distinct and separate crime. Pierson v. The People, 79 N. Y., 424.

The record in this case discloses no error which supports any exception taken on the trial or to the findings of the court.

The judgment must be affirmed.

Barker, P. J.; Haight and Bradley, JJ., concur. Judgment affirmed, with costs.  