
    Eliza W. Parkhurst, Resp’t, v. Robert H. Berdell, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    1. Evidence—Judgment-roll—Effect of subsequent reversal of Judgment.
    The plaintiff put in evidence on the trial of this action the judgment-roll in another action. Thereafter, upon an appeal taken in that other action, the judgment therein was reversed. Held, that if the judgment-roll was competent evidence when received, its reception was not rendered erroneous by the subsequent reversal of the judgment; that notwithstanding its reversal, it continued m this action to have the same effect to which it was entitled when received in evidence.
    
      2. Same—Remedy—Motion fob new trial in court of original jurisdiction.
    The only relief a party against whom a judgment which has been sub- . sequently reversed has thus been received in evidence can have, is to move on that fact in the court of original jurisdiction for a new trial, and then the court can, in the exercise of its discretion, grant or refuse a new trial as justice may require.
    3. Same—Judgment—When bes adjudicata between parties defendant.
    The parties to this action were parties to the other action mentioned above, and there was litigation between them as adverse parties, although both of them were defendants in that action. Held, that whatever was adjudicated as between them estopped them as if the adjudication had been in an action wherein one of them was plaintiff and the other defendant.
    4. Same—Admissibility of—When objection must be made.
    A party cannot lie by, tacitly consent to the examination of a witness, and take his chances as to the evidence, and when it proves unsatisfactory to him complain of its admissibility.
    5. Same—Husband and wife—What confidential communications between—Code Civ. Pro., § 831.
    The communications which a husband or wife are prohibited to disclose as a witness, under Code Civil Procedure, section 831, are such communications as are expressly made confidential or such as are of a confidential nature or induced by the marital relation. It does not apply to ordinary conversations relating to matters of business, which there is no reason to suppose he would have been unwilling to hold in the presence of any person.
    Appeal from a judgment of the supreme court, general term, second department, affirming a judgment in favor of the plaintiff, entered in the Orange county clerk’s office, on the report of a referee.
    This action was brought to compel an accounting by the defendant for certain money and securities of the plaintiff had and appropriated by him, and to have the amount found due her declared a lien upon certain land in Goshen, in this state.
    The action was referred, and the facts found by the referee, so far as it is now material to state them, are as follows : That Sylvester 0. Parkhurst, the husband of the plaintiff, died in the city of New York on the 12th day of April, 1867, and at the time of his death he»had in his possession and was the owner in his own right of the following property: 292 shares of the stock of the Ninth National Bank of New York, of $100 each; fifteen bonds of the Long Dock Company, of $1,000 each; United States bonds of the par value of $5,500; five bonds of the Alton and Terrahaute Railroad Company, of $1,000 each; five first mortgage bonds of the New York and Erie Railroad Company of $1,000 each, and ten bonds of a Newark Horse Railroad Company of $500 each; and that by his will he bequeathed all of the property to the plaintiff, and she took possession and became the owner thereof; that the plaintiff loaned the securities to the defendant, Berdell, some of them in the year 1869, and the remainder of them in the year 1870; that soon after borrowing them, the defendant sold 147 shares of the bank stock for the sum. of $16,530, which he received, and after charging himself with that sum,, together with the interest and dividends on the securities remaining unsold, which had been collected by him, and deducting therefrom all such sums as he had paid or advanced to the plaintiff, and all other sums which she owed him, there was a balance found due her of $16,000, for which he gave her his note bearing interest dated July 1, 1870; that he gave her his receipt bearing date January 1, 1870, for the balance of the bank stock unsold, and the other securities as follows: “ Received, Goshen, Orange county, N. Y., January 1, 1870, from Mrs. E. W. Parkhurst, 14,500 (145 shares) Ninth National Bank stock; 15.000 (1,000 each) Long Dock Bonds; 5,500 (1864 s.) U. S. bonds; 500 Terre Haute and Alton second mortgage bonds. The above securities have been loaned to me to use, and I agree to return them to her at her request.
    ROBERT H¡ BERDELL.
    Also, five Erie first mortgage bonds; also, 5,000 Newark Horse Railroad bonds.
    ROBERT H. BERDELL.
    That after the giving of the note of $16,000, the defendant collected, from time to time, as the same became due and payable, the interest and dividends on the securities mentioned in the receipt and from time to time as she required the same, paid her portions thereof; that on the first day of January, in each and every year after the receipt was given (except January 1, 1871), up to and including the first day of January, 1875, the plaintiff and defendant had an accounting and settlement, in which he charged himself with the amount of the note held by her at that time, and interest thereon given by him to her on a previous settlement and accounting, and also with the dividends and interest received by him upon the securities mentioned in the receipt, and credited himself with moneys paid to or for her, and for the balance thus found due to the plaintiff on such settlement, be then gave his note, bearing interest and payable on demand; that on the settlement had January 1, 1875, there was found due her the sum of $34,569.61, for which he gave her his note, payable on demand, with interest, which note, with interest, remained unpaid and due to her; that he has not returned to her the securities mentioned in the receipt, although requested by her to do so, but he has refused to return the same and has converted the same to bis own use; that on the 24th day of September, 1873. he, for the purpose of securing her for the payment of the note then held by her, which had been given on a previous settlement, as above stated, and also for the purpose of giving her security for the return of the stocks and bonds mentioned in the receipt, or the proceeds thereof, executed and delivered to her his bond for the sum of $80,000, dated that day. and also, together with his wife, for the purpose of securing the bond, executed and delivered to her a mortgage for the same sum on certain real property belonging to him in the city of New York, which mortgage was duly recorded; that thereafter, in the year 1874, he desiring to convey to the Central National Bank the lands covered by the mortgage, requested her to execute and deliver to him a satisfaction piece thereof, and in consideration thereof he promised and agreed that he would in lieu thereof execute and deliver to her another mortgage for a like amount and for a like purpose on real estate owned by him in the town of Goshen, Orange county, as a substituted security; that thereafter, on the twenty-third day of July, 1874, in compliance with his request and in reliance upon his promise, she executed and delivered to him a satisfaction piece of the mortgage for $80,000, and that mortgage was actually thereby satisfied of record, and he thereafter conveyed the land covered thereby to the Central National Bank; that thereafter on the twenty-fourth day of July in the same year he, in fulfilment of his promise, executed and delivered to her a mortgage on the Goshen real estate for the sum of $80,000 and she handed the same back to him for safe keeping, he promising to have it recorded; that he has neglected and refused to have the mortgage recorded or to return the same to her, although requested so to do, and it still remains unrecorded; that a certain instrument bearing date December 12, 1862, purporting to be a deed of trust by him to Sylvester C. Parkhurst for certain lands in the city of New York was never delivered by him nor was it intended that it should be delivered and it was not intended to be an operative instrument or to be carried into effect as between the parties to it or as between them or either of them and the cestuis que trust named in the trust deed, nor was the trust agreement between him and Parkhurst of the same date as the trust deed intended when executed to be carried into effect as between them or either of them and the cestuis que trust named in the trust deed; that the stock and bonds mentioned in the receipt above set out were on the 6th day of November, 1875, the day when this suit was commenced, and ever since have been, of the value in the aggregate of $52,000, which with the interest thereon from January 1, 1875, was chargeable to the defendant.
    And the referee found as conclusion of law that the plaintiff was entitled to judgment against the defendant for $125,620.80, that sum being the aggregate of the principal of his promissory note for $34,569.61, dated January 1, 1875, and the interest thereon, and of the $52,000 and the interest thereon, less certain deductions mentioned; that the plaintiff by the execution and delivery to her of the mortgage on the Goshen property under the circumstances •and upon the consideration above mentioned, acquired an aquitable lien to the extent of $80,000 of the above named sum and the interest thereon on the Goshen property to the same extent and with the same force and effect as if the mortgage had on the date thereof been duly recorded in the clerk’s office of Orange county or could be produced by the plaintiff, and it should be so adjudged and declared in and by the judgment to be entered in this action.
    Judgment was entered in pursuance of the report, which judgment has been affirmed upon appeal to the general term.
    
      Calvin Frost, for app’lt; S. W. Fullerton, for resp’t.
    
      
       Affirming 38 Hun, 643, mem.
      
    
   Earl, J.

A careful scrutiny of the record satisfies us that there was sufficient evidence to warrant the essential findings of the referee, and they having been affirmed by the general term, must remain undisturbed. The facts found justified the relief granted, and it is incumbent upon us now only to consider whether there were any errors committed by the learned referee in his rulings during the progress of the trial.

The plaintiff offered in evidence the judgment-roll in the action of “Ambrose S. Murray (suing on behalf of himself and all other judgment-creditors of Robert H. Berdell who shall come in and seek relief by, and contribute to, the expenses of this suit) against Robert H. Berdell, Charles P. Berdell, Mrs. A. Berdell, Erastus S. Spencer, as receiver of Robert H. Berdell and Eliza W. Parkhurst.” The defendant objected to the admissibility of the record in evidence “as not being competent testimony in this case against him,” and the objection was overruled and the record received in evidence.

It does not appear for what purpose the record was offered and received, nor was any particular objection to it specified. It does not appear what use the referee made of it, and it is impossible to perceive what, if any, weight or bearing it had upon his determination. There was no finding in reference to it, and none was requested. The counsel for the appellant did not, in his argument before us, point out wherein he regarded the record incompetent as evidence when it was received, and we are unable to say that it was incompetent. The action in which that judgment was rendered was brought, among other things, to set aside certain conveyances of, and liens upon the lands of Robert H. Berdell as a fraud upon his creditors, and among other things the court found, as the referee found in this action, that certain deeds absolute in form, given by Berdell to Mrs. Parkhurst, were subsisting mortgages, and that he was indebted to her just as the referee found he was in this action, and that he gave her the first mortgage for $80,000 and the substituted mortgage upon the Goshen property for the same sum, under the circumstances and upon the consideration found by the referee in this action, and it was found and adjudged there that the trust deed for the benefit of his children had never been delivered and never took effect.

Mrs. Parkhurst was a party to that action, and there was litigation between her and him as adverse parties, although both of them were defendants, and, therefore, whatever was adjudicated as between them estopped them as if the adjudication had been made in an action wherein one of ' them was plaintiff and the other defendant. As it appears to have been material to establish in this action some of the matters adjudicated in that in favor of Mrs. Parkhurst, it was competent for her to establish them by the judgment roll introduced in evidence. But that judgment was rendered in September, 1878, and before the trial of this action an appeal had been taken to the general term. That is all that appeared upon the trial of this action. But the appeal did not suspend the operation of the judgment as an estoppel. The records of our court, however, disclose that that judgment was affirmed at the general term, and upon appeal to this court was reversed in October, 1884, on the ground that, as matter of law, upon the undisputed facts, the trust deed above mentioned was delivered and did take effect. 97 N. Y., 13.

Upon the argument before us the only objection specified to the judgment roll as evidence was that the judgment had thus several years after it had been received in evidence been reversed. But such an objection is not available; it does not appear in the record now before us. If the judgment roll was competent evidence when received, its reception was not rendered erroneous by the subsequent reversal of the judgment. Notwithstanding its reversal it continued in this action to have the same effect to which it was entitled when received in evidence. The only relief a party against whom a judgment which has been subsequently reversed has thus been received in evidence can have is to move on that fact in the court of original jurisdiction for a new trial, and then the court can in the exercise of its discretion grant or refuse a new trial as justice may require.

I might stop here upon this branch of the case. But the learned counsel for the plaintiff seems to admit that the judgment in that action has ceased by its reversal longer to have any effect; and hence I ought to proceed further and show that the receipt of the judgment roll did not prejudice the defendant. We are still confronted with the difficulty to determine for what purpose it was offered, and what effect, if any, was given to it as evidence. But the counsel on both sides seem to assume that it was introduced for the purpose of establishing the fact that the trust deed was not delivered and that it never took effect, and I will proceed upon that assumption.

This court upon the appeal in the other case did not determine that Berdell’s evidence as to. the delivery of the trust deed ought to have been credited, but that the undisputed facts showed in law a delivery; and as the facts proved in this case as to the delivery of that deed were substantially the same as those proved in that case, we must assume that that deed was delivered and that it had operation and effect, and that therefore the referee erred in his conclusion that it was not delivered. We are nevertheless upon this assumption of opinion that the error was not prejudicial to the defendant.

The evidence on the part of the plaintiff was to the effect that the first mortgage of $80,000 was given to secure her as found by the referee. The evidence on the part of the defendant was to the effect that that mortgage, although made to her, was given to secure his son Charles for his interest in the trust property which he had conveyed and used for his own benefit. The referee wholly discredited his evidence and found upon proof greatly preponderating that it was given for the purpose claimed by her. In view of all the evidence, which cannot be particularized here, we think the finding of the referee as to that mortgage would have been the same if he had also found as matter of law that the trust deed had actually been delivered. But still further, he testified that he never promised to give and never gave the substituted mortgage, and denied all plaintiff’s evidence in reference thereto.

The referee wholly discredited this evidence and found that the mortgage was given as claimed by the plaintiff, and that mortgage rests wholly upon the evidence furnished in her behalf. The defendant makes no claim or pretence that that mortgage was executed for the benefit of his son, or that it had any connection with or relation to the trust deed. He denies its existence, and if it had existence, it must have been made for the purpose testified to by her. We can therefore, see no reason for saying upon any view of the case that this judgment ought to be reversed on account of the reception of the judment-roll in evidence, or of the finding of the referee complained of.

During the progress of the trial Mrs. Berdell, tie wife of the defendant,' upon the examination of plaintiff’s counsel, gave evidence as to conversations with him when they were alone, as to plaintiff’s securities, taken by him, his obligation to her for the same, and his promise to secure her therefor. She was cross-examined by his counsel as to the same conversations, and then, after the answers had been taken, his counsel having previously made no objection to the evidence, moved to strike it out on the ground that the conversations were confidential communications and prohibited under section 831 of the Code. The motion was denied, and this is now complained of as error. It is a complete answer to this exception that the objection came too late. The defendant could not lie by, tacitly consent to the examination, and take his chances as to the evidence, and when it proved unsatisfactory to him, complain of its admissibility. Quin v. Lloyd, 41 N. Y., 349; Miller v. Montgomery, 78 id., 282.

But if the objection to the evidence had been timely, it would not have been available. The section of" the Code referred to, forbids not all communications between husband and wife, but only confidential communications. What are confidential communications within the meaning of the section? Clearly not all communications made between husband and wife when alone. If such had been the meaning it would have been so provided in general and simple terms. They are such communications as are expressly made confidential, or such as are of a confidential nature, or induced by the marital relation. The conversations with her husband, testified to by Mrs. Berdell, cannot- be excluded by the application of any of these tests. They were ordinary conversations relating to matters of business, which there is no reason to suppose he would have been unwilling to hold in the presence of any person. There was thererefore, no violation of the section of the Code cited.

We have now noticed the principal objections relied upon by the defendant. Others were argued, and we have given them careful consideration. It is sufficient to say of them that, we do not find in them any occasion for the reversal of this judgment.

The judgment should be affirmed with costs.

AlTconcur.  