
    George Wing, Resp’t, v. Anna L. Bliss, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1889.)
    
    Evidence—Personal transaction with deceased person — Code Civ. Pro., § 829.
    In an action to recover plaintiff’s share of an alleged partnership transaction in real estate, which plaintiff’s alleged partner had devised to his wife, the defendant, the plaintiff, to prove his case, introduced in evidence a letter to him from the deceased partner, which directed the survivor to pay certain taxes, among others, upon the premises in question which were spoken of as “our lot.” A check blank as to amount was contained in the letter. Plaintiff testified without objection that he filled in the check for the amount and paid the taxes. Under objection he stated that he had seen deceased write; that the letter, check and envelope were in the deceased’s handwriting, and that on a certain day he found all these papers on his table. Held, that this evidence was not obnoxious, under Code Civ. Pro., § 829, as a personal transaction or communication with the deceased.
    Appeal from an interlocutory judgment entered upon the decision of tlie Erie county special term, by which, it was adjudged that the plaintiff and one Seth P. Bliss, deceased, were copartners in purchasing and holding for resale, anticipating profits, two city lots, without buildings thereon, located in the city of Buffalo. The title to the premises was conveyed to Bliss, who advanced all the purchase money, and it is alleged by the plaintiff that there was an agreement entered into between himself and the deceased, before the conveyance was executed, by the terms of which they were to share in the profits and losses. Bliss, by his last will and testament, devised the lands to the defendant, his widow, who retains the title. This action is brought for the purpose of closing out the alleged transaction and securing to the plaintiff his share of the profits if any have accrued.
    The form of the judgment is stated in the opinion.
    
      William 0. Oreen, for app’lt; Spencer Clinton, for resp’t.
   Barker, P. J.

At the the time of the death of Seth P. Bliss, who was the husband of' the defendant, the title to the premises situated on the corner of Bork avenue and Hoyt street was vested in him by a deed from Charles J. Ellis, dated October 29, 1883. The title of this grantor was not questioned on the trial. By his last will, Bliss devised the premises to the defendant. The plaintiff alleges in his complaint, as his cause of action, that before Ellis deeded to Bliss, he and Bliss entered into a paroi agreement that the plaintiff should make a bargain with Ellis for the purchase of the lots, look after the title, and see to the taxes, and, on a resale, they should divide the profits equally, if any were realized, and bear equally the losses, if any were sustained. This action is prosecuted to close out the alleged transaction in some proper way, so as to secure to the plaintiff his rights and equities in the joint enterprise.

It is admitted that in some form the decedent advanced all the purchase money, and paid all the taxes; and also that the lots remained unsold, and that the defendant is in the possession of the same.

It was conceded by the defendánt on the argument that a paroi agreement betweeen the parties of the nature and character of the one relied upon by the plaintiff is valid, and is not open to the objection that it violates the statute of frauds, and that such a contract may be enforced by a proper action. Chester v. Dickerson, 54 N. Y., 1; King v. Barnes, 109 id., 267; 15 N. Y. State Rep., 52.

The evidence produced by the plaintiff in support of the agreement as claimed by him is such, in our opinion, as to justify the conclusion of the trial court on the question of fact in dispute. The burden of proof was on the plaintiff, and as the relation of attorney and client existed between Mr. Wing and the deceased at the time of making the agreement, he was called upon to show that the bargain was perfectly fair, and that we think he has done.

This is not a case where the attorney’s knowledge of and relation to the property commenced in advising his client as to the rights and interests of the latter in the property in question, for if any fact is established by the evidence it is that the parties agreed to enter upon the enterprise while the title was in Ellis, who had, through the plaintiff as his agent, placed the property upon the market. In considering the evidence for the purpose of satisfying our minds as to the terms of the bargain between the plaintiff and the deceased, we have discarded as evidence bearing on this question the declarations and statements made by the plaintiff to the defendant as to the ternis of the contract, as they were given in evidence for another purpose and were incompetent as evidence to prove the alleged agreement.

The plaintiff was sworn as a witness in his own behalf, and without his evidence the proof in support of his case would have been so scant, and the nature of his arrangement so uncertain, that the complaint would probably have been dismissed for want of proof.

It is claimed by the defendant that the plaintiff was permitted to testify over her objection and exception as to a personal transaction and conversation between himself and the decedent in violation of the provisions of § 829 of the Code of Civil Procedure. As the defendant claims title under her late husband, she was in a position to demand a strict observance of the provisions of the rule therein described. The plaintiff offered and read in evidence a letter purporting to be written by Mr. Bliss and addressed to the plaintiff, which contained a statement which when read in connection with the other evidence, tended to prove that the decedent and the plaintiffs were both interested in the lot. The only-sentence in the letter having any signification or bearing on the question in dispute is as follows: “Gr. Wing. Please pay my taxes on my house, 81 North street, and on our lot, and get receipts to-day or to-morrow. Yours, S. Bliss.” The portion- of the evidence objected to has been closely scrutinized and read with the context to see if the exception was well taken. The plaintiff had already testified, without objection, that he had paid the taxes on the North street property owned by the deceased and mentioned in the letter, and also upon the Bork avenue property, the premises in question; that the same was paid by check that was signed in blank by Mr. Bliss, and that he filled in the amount in the body of the check and gave it to the city treasurer; and that he knew Mr. Bliss’ handwriting. He was then asked this question: Have you seen him write ? And his answer was he had, many times. The defendant’s counsel objected that the evidence was incompetent under § 829, and moved to have the evidence stricken out upon the ground stated. The objection was overruled, and the motion denied, and the defendant excepted.

The plaintiff was a competent witness to prove the handwriting of the deceased. Simmons v. Havens, 101 N. Y., 427.

The letter was then presented to the witness, and he further testified: It is all in his (Bliss’) handwriting. I found his note upon my table upon the 9th of July, 1884, in that envelope that you have in your hand; in that envelope was a check 1S. P. Bliss ’ with this note, and that is the check I have spoken of with which I paid the taxes spoken of. The address is in S. P. Bliss’ handwriting.” The letter was then offered in evidence, and also the envelope in which it was enclosed, and the defendant’s counsel objected to its receipt on the ground that it is part of a personal transaction and communication between the witness and Mr. Bliss, and as to that the witness is incompetent under § 829. The objection was overruled and an exception taken, and the letter and the address on the envelope were read. The objection was limited to the receipt of the papers in evidence, and as their genuineness had been established they were clearly admissible as some evidence relative to the controversy. It is not claimed that the plaintiff received* the letter from the hands of the decedent. He was a competent witness to prove how it came into his hands, as it might have been placed upon his table by some other person than Mr. Bliss. The evidence given by the plaintiff after objection was interposed was limited to proving the handwriting of Mr. Bliss, and that the letter was found on his table. No objection was taken to the plaintiff’s evidence that the check was signed by Bliss, and filled in with the amount of the tax by the plaintiff, as they were probably undisputed facts and could have been otherwise proved, and it is to be presumed, as no objection was interposed, that the defendant was willing to have these facts, appear in the case.

We have examined all the other exceptions to which our attention has been called, and fail to discover any error in the rulings.

We think that some of the provisions of the judgment are improper, if not erroneous, as exposing to loss and misappropriation the rights and interests of the defendant in the property as the successor in interest of her late husband, and the judgment should be so modified as to fully protect her interests. It is adjudged that the plaintiff, as surviving partner, is entitled to the property of the said firm, being the land in question, and the defendant is ordered to execute a grant of the premises to the plaintiff so as to vest the title in him as survivor of the said firm or, at her option, that she convey to the plaintiff by like grant one equal undivided one-half part of the land described in the complaint as his individual interest therein.

The decree appoints a referee, naming him, to take and state the accounts and report thereon, and that the final judgment shall declare the sum which either party shall pay to the other for and on account of the said land. ISTo provision is made for the sale of the property under the order of the court by the referee or otherwise. It was obviously the intention of the parties that the title should remain in the deceased partner as security for his advances and as this action is to close out the speculation, we think the proper course is to direct that the premises be conveyed to a referee and sold under the order and direction of the court, and the proceeds distributed according to the rights and equities of the parties. The court has no power, without the consent of the parties, to direct a partition of the premises, and without a sale it cannot be ascertained how the account stands between the parties and whether there will be profits or losses. We think the judgment should be modified in accordance with these views and as modified, affirmed, with costs.

Dwight and Macomber, JJ., concur.  