
    Nannie L. Vaughn, App’lt, v. Mary M. Strong, as Adm’rx of Thomas J. Strong, Deceased, Res’pt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March 16, 1889.)
    
    Evidence — When private book and diary of deceased testator-.
    INADMISSIBLE IN FAVOR OF HIS REPRESENTATIVE.
    Where in an action to recover the proceeds of a policy of insurance on the life of the father of plaintiff which defendant’s testator had collected and received, it was sought to introduce in evidence entries in the private-book and diary of said testator upon proof merely that the entries were in his handwriting, Held, that as the entries were not made in the presence of the parties interested in the fund, or under circumstances by which they might be regarded as a part of the res gesta, and that as the-books contained only private memoranda in favor of the testator, that they were, therefore, inadmissible in favor of defendant who was his representative.
    Appeal by the plaintiff from a judgment entered in the above action in favor of the defendant upon the report of a referee.
    In the latter part of June, 1871, Thomas J. Strong, of Sandy Hill, N. Y., received from Charles W. Swift, of' Poughkeepsie, N. Y., $1,750, which had been collected or received upon a policy of insurance upon the life of Edwin. A. Vaughn, issued by the Guardian Life Insurance Company, of New York.
    Edwin A. Vaughn died about April, 1871, leaving his-widow, Anna E. Vaughn, and three children, William E„ Vaughn, Thomas S. Vaughn and Nannie L. Vaughn surviving him. Some time during the life of Edwin A. Vaughn, his wife and the eldest son, then a minor, assigned this policy to Mr. Swift, as it seems, on account of a debt of Mr. Vaughn to him. The policy was not produced and •could not be found, the Company having gone into the hands of a receiver, and the business closed out many years ago. But the policy or its proceeds had been intended for -the children. Mr. Swift collected the money on the policy, and met the agent of the Company, Mr. Beattys, Mrs. Vaughn, Mrs; Laura S. Bailey, Mr. Strong (who was a brother of Mrs. Vaughn), and some one or two others, in Mr. Strong’s office, in Sandy Hill. Here the money was passed over to Mr. Strong, by the general consent of all present, to be held by him for the benefit of the three chil-dren of Mrs. Vaughn. Considerable talk was had about how this money should be kept or used; but on the same >day, or the next, Mr. Strong told Mrs. Vaughn that they had concluded to divide the money bétween the children so .as to give William $650, Nannie $500, and Thomas $600. 'To this she seems to have assented, making no objection. All of the children were then infants. Previous to that, and at about the time of the death of her husband, Mr. Strong had invited his sister, Mrs. Vaughn, to go to his house with her children, and make that her home, without ■any charge or cost to her or them, and she had gone there with them, the oldest, William, however, staying only a •short time. No claim was made for this money by any one until after Mr. Strong’s death, which occurred in 1885. Each one of these children then presented a claim to the -•administratrix, which was disputed, and under an agreement to refer, all claims were sent to the same referee for trial. The referee reported in favor of the defendant, which report was confirmed by the court, and judgment -entered thereon, from which judgment the plaintiff appeals to this court.
    
      W. Farrington, for app’lt; Lyman Northrup, for resp’t.
   Ingalls, J.

—Upon the trial, practically two questions were litigated.

First. Who was the owner of the fund of $1,750, which was placed in the hands of said Thomas J. Strong, whether Mrs. Anna E. Vaughn, or her children, of whom the plaintiff is one.

Second. Whether the said Thomas J. Strong, made any advances for the benefit of Mrs. Vaughn and her children, -or either of them, which was properly chargeable upon the .fund in his hands. It is needless to discuss the process by which such fund came to his possession, as there is no ground for doubt that he held it for the benefit of some of the parties above mentioned, and the only inquiry in that regard was for whom ?

Upon both questions considerable evidence was given by the parties respectively, upon the trial; and such evidence’ was conflicting to such extent, that we are not prepared to say that a very decided preponderance was produced by either party. We are convinced that a fatal error was committed by the referee in admitting as evidence on behalf of the defendant, the entries in the private book, and diary,, of Thomas J. Strong, upon proof merely that such entries; were in his handwriting. The books contained only privatememoranda in his favor, and therefore, inadmissible in favor of the defendant, who was his representative. Such evidence cannot be disregarded by this court, upon the ground that the defendant has made it affirmatively to appear that the plaintiff’s case has °not been prejudiced by the admission of such evidence, as such is not the case. It was calculated to influence the mind of the referee, as it bore upon the material questions involved, in regard to which, the-evidence was conflicting, with no very decided preponderance either way. The case shows that such evidence was received, as follows:

Granville H. Ingals.being sworn for defendant testified as. follows:

I knew Thomas J. Strong in his life, and was well acquainted with his handwriting (book shown witness). This, is one of the books of General Strong. Pages 8, 9, 10 and 11, are in his handwriting. These four pages offered in evidence. Objected to by plaintiffs as hearsay, immaterial and improper, as establishing no charge against the plaintiffs; that there is no proof to entitle it to be read in evidence as a book of account, and purports to be a transaction with Anna E. Vaughn only. Objections' overruled. Exception by plaintiffs.

The four pages received in evidence and marked, each, page (Defendants, No. 11, May 31, 1888):

(Another book shown witness.) This is one of the diaries -of General Strong.

Q. Look at the entry after the date of Saturday, June 24, 1871; state the entry as to the Sandy Hill Bank and Mrs. Vaughn? Objected to by plaintiffs as not evidence against the plaintiffs, and also on the ground of objection made to the previous question as to the admission in evidence of the account book. Objection overruled. Plaintiffs except. A. It is in the handwriting of Thomas J. Strong, and reads: “ S. H. Bank, Dr., to balance to date, $1,956.25. To certified check, $1,750. Anna E. Vaughn, Or., by certified check of Swift, $1,750.” Hereupon the evidence closed on both sides, and the foregoing is all of the evidence given on said trial. We discover no rule of evidence which would justify the receiving of such private memoranda, made for the benefit of the party making the same. As well might the defendant have proved the declarations, of Thomas J. Strong to third parties, as evidence in support of the defense. Such entries were not made in the presence of the parties interested in the fund, or under circumstances by which they might be regarded as a part of the res gestoe. The evidence-indicates that the plaintiff had no knowledge of such entries until the trial of the action, Foundation was not laid, for the introduction of such books, as books of account, and there can be no rational pretense that they can be so regarded under the circumstances. The counsel for the plaintiff sufficiently objected to the admission of such eviaencewhen offered, and excepted to the ruling of the referee in receiving the same. The error thus pointed out, seems so-material and fatal to the recovery herein, that further-examination of the case is not called for. The judgment- and the order confirming the report must be reversed, and. a new trial ordered before another referee, with costs to abide the event, as provided by the statute in such cases..

Learned, P. J., and Ingalls, J., concur.  