
    Margaret M. Brennan, Adm’rx, Resp’t, v. Susan E. Hall et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed February 9, 1892.)
    
    1. Witness—Privileged communication—Attorney and client—Code Crv. Pro., § 833.
    On the trial of an action of interpleader the issue was whether a mortgage executed to J. J., and by him assigned to H., the trustees of whose will are defendants, was assigned absolutely, or for the benefit of M., the wife of J. J. A witness who acted as counsel for J. J. in the execution and assignment of the mortgage was allowed to testify that H. told him that J. J. wanted him, H., to take an assignment of the mortgage and hold i>. for M. Held, no error. (1) The witness did not act as attorney for H.; (2) the objection of the defendants’ counsel to evidence of the conversation between J. J. and H. was too broad, as he was competent to testify as to what H. said; (3) he was certainly competent to testify to the conversation held in his presence between J. J. and H. relating to the purpose for which H. was to take and hold the mortgage.
    t2. Same—Statements made by deceased person against ms own interest.
    H. having died, sometime after his death the mortgage was found in an envelope in his bank, with these words written on it, " All the papers, bond and mortgage, assignment, etc., are the property of S. A. Jarvis,” and a paper inclosed signed by H. in which he agreed to reassign the mortgage to her. Held, that these written statements were incompetent; that when made they were against the interest of Mary H. Jarvis, and not against his interest.
    3. Interpleader.
    After the judgment herein had been affirmed at the general term, and defendants had appealed to this court, Sarah A. Jarvis applied at special term to be made a party, and to be allowed to intervene. Held, that while the court had the power at that late stage of the case to grant the relief, it it was entirely discretionary and cannot be reviewed here.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment recovered by plaintiff at special term, and from order affirming order denying motion for leave to come in and be made a party.
    
      Lyman M. Warren, for app’lts; Gilbert W. Minor, for resp’t.
    
      
       Affirming 39 St. Rep., 130. See S. C., post.
    
   Earl, Ch. J.

On the 14th day of May, 1884, Judson Jarvis, of the city of Mew York, executed to Henry Korn a deed of certain real estate in that city, and to secure a part of the purchase money Korn executed and delivered to him a mortgage for $13,500. On the next day Jarvis executed and delivered an assignment of that mortgage to Washington A. Hall for the benefit of his wife, Mary H. Jarvis, under a paroi agreement with Hall that he would assign the mortgage to Mrs. Jarvis whenever she wanted it. Hall had no interest whatever in the mortgage or the money secured thereby, and he took the assignment solely for the benefit of Mrs. Jarvis. Hall died in February, 1885, and the defendants, Susan E. Hall and William H. Clark, are the executors and trustees under his will. Judson Jarvis died in May, 1885, and his wife, Mary H. ■Jarvis, died intestate in October, 1888, and the plaintiff was appointed administratrix of her estate. Shortly after the death of Mrs. Jarvis, the defendants, claiming to hold the mortgage under the last will and testament of Hall, commenced an action in the supreme court against Korn for a foreclosure thereof. Korn having been informed of the claim of Mrs. Jarvis to the mortgage, commenced an action in the supreme court against these defendants, and the plaintiff as administratrix of the estate of Mrs. Jarvis, in which he prayed for relief, among other things, that he might pay the money due upon the mortgage into court, and that "the mortgage be cancelled, and that the parties to this action might interplead and litigate their respective claims to the moneys thus deposited. Thereupon this action was commenced, and it was •therein determined that the plaintiff was entitled to the money under the agreement made between her husband and Hall, ancL judgment was entered in her favor. The defendants have appealed and now assail the judgment for certain alleged errors in the rulings of the trial judge in the reception and exclusion of evidence. We find no error in these rulings.

To prove the.parol arrangement under which the assignment, was made by Mr. Jarvis to Hall, for the benefit of Mrs. Jarvis, the plaintiff called as a witness John H. Y. Arnold, the attorney who, acting professionally for Jarvis, drew the deed from him to Korn, the mortgage to him, and the assignment of the mortgage to Hall; and portions of his evidence were objected to on the part of the defendants as incompetent under § 835 of the Code. The objections were overruled and the evidence was received, and it is now claimed that the evidence was incompetent. To this claim there-are three satisfactory answers. (1) Arnold did not act as attorney for Hall, and he testified to various conversations with Hall in which he fully and explicitly stated and admitted the arrangement under which he received the mortgage for the benefit of Mrs. Jarvis, and if all the evidence he gave of declarations made-by Jarvis were stricken out it would not affect the case as the remaining evidence of Arnold, which was uncontradictéd and undisputed and believed by the trial judge justified and required the-determination made. (2) When plaintiff's counsel offered to-prove by Arnold the conversation between Jarvis and Hall in his presence, in reference to the assignment of the mortgage to Mrs. Jarvis, and the purpose of the assignment, the defendant’s counsel objected to evidence of the conversation. That objection was too broad. The witness was at least competent to testify to what Hall stated, and thérefore the objection to what both Jarvis and Hall said was not well founded. (3) Even if the witness under the-circumstances was incompetent to testify to any communications or declarations made to him by Jarvis, he was not -incompetent to testify to the conversations held in his presence between Jarvis- and "Hall relating to the purpose for which Hall was to take and hold the mortgage. So we find no error in the rulings of the-trial judge upon the evidence of Arnold.

Upon the trial the defendants did not claim that Hall at the-time of his death, or at any prior time, owned or had any interest in the mortgage. Nor did they claim any title to or interest in the mortgage as executors and trustees under the will of Hall. While in their answer they did allege that the mortgage was the property of Hall at the time of his death, and as such came to-them, and that they were entitled to the proceeds thereof, upon the trial they alleged that Hall took the assignment of the mortgage in trust for the benefit of Sarah A Jarvis, the mother of Judson Jarvis. Sometime after the death of Hall the mortgage-was found in an envelope in the bank where it had been deposited by Hall, and on the envelope, in his handwriting, were these-words: “ All the papers, bond and mortgage, assignment, etc., are the property of S. A. Jarvis.” The envelope also contained this paper, which was in the handwriting of Hall:

“New York, October 8, 1881.
“ The bond and mortgage assigned to me by Prince & Whitely,, for the sum of $20,400 does not belong to me, the money to pay for said mortgage being furnished by Mrs. Sarah A. Jarvis, and the same is to be reassigned to her, or who she may designate, and I hereby bind myself, my heirs or assigns, to make said assignment.
“W. A. Hall.”

Defendants offered to put in evidence the endorsement upon the envelope and the other paper for the purpose of showing that the mortgage actually belonged to Sarah A. Jarvis, and was held by Hall in trust for her. It was claimed that the evidence was competent because these were written declarations and entries made by Hall, then deceased, which were against his interest when made. There is a well recognized exception to the rule which -excludes hearsay evidence, by which declarations and entries made by persons, since deceased, against their interests when made .are allowed. Such declarations and entries are received because -of the extreme improbability that the person making them would fabricate or falsely make them against his own interests. * 1 -Green! Ev., §§ 147, et seq. To bring the declarations and entries in such a case within the exception, the fundamental requirement is that they should at the time be against the interests of the person making them.

The exception does not apply here, because these statements of Hall were, when made, against the interests of Mary H. Jarvis, and not against his interest. He never at any time claimed to hold the mortgage as his own, and never in fact owned it, and these defendants, upon the trial, did not claim he ever owned it, or that they had any interest in it. If these statements were allowed as evidence they would simply tend to show that the money in controversy belonged to Sarah A. Jarvis, and not to Mary H. Jarvis, and hence they are not within the reason of the exception, and it is confidently believed that no authority can be found holding such statements competent evidence under such circumstances.

When a person makes statements or entries impairing, qualifying or limiting his title to property in his possession, then, in a litigation after his death, when the title to the same property comes in question, such statements or entries may be given in evidence, and the fact that they were against the interest of the person making them stands in the place of an oath, and gives nearly, if not quite, the same assurance of veracity. So, if either of the parties to this action were here asserting the title of Hall to the mortgage, and claiming under, through or from him, then his statements made in derogation of his title and thus against his ■interest could be given in evidence against such party, and the rule referred to could have no other application to such a case.

We are, therefore, of opinion that the trial judge did not err in excluding these written statements made by Hall.

The defendants presented no other question for our consideration upon their appeal from the judgment, and it should be afáirmed, with costs.

There is also in this case an appeal from an order to which we will give brief attention.

After the judgment had been affirmed at the general term, and the defendants had appealed to this court, Sarah A. Jarvis made an application to a special term of the supreme court to be made a party to this action, “ and for an order that the judgment heretofore rendered herein be opened, and said Sarah'A. Jarvis have leave to intervene in said action and set forth and plead her claim as stated in the petition herein.” That motion was denied at the special term, and the order of the special term was affirmed at the general term, and then she appealed to this court.

The court below undoubtedly had power, even at the late stage’ of the case, to allow Sarah A. Jarvis to be brought in as a party; but whether the order should be made or not rested in its discretion, and its determination is not reviewable here. It cannot even-be said that the discretion was unwisely exercised. At that stage of the case it was certainly more appropriate that she should institute-an independent action to enforce her rights, if she had any, to the-fund. Not being'a party to this action, she is in noway concluded by the judgment rendered therein. She may at once commence her action, making the parties to this action defendants therein, and have her right to this fund determined. Or she may wait • until the fund is paid over under this judgment to this plaintiff, and then commence an action against her, alleging her right thereto, and have it determined in that action. So no harm whatever was done to her by the denial of her motion.

The appeal from the order should be dismissed, with costs.

All concur, except Maynard, J., taking no part.  