
    Mary A. Guilfoyle, Respondent, v. Catherine E. Pierce and Frances M. Pierce, Appellants, Impleaded with James F. Guilfoyle and David J. Lees, as Receiver, Defendants.
    First Department,
    April 10, 1908.
    Equity—cancellation of deed—party — evidence — contents of book.
    The purchaser alone can maintain an action to rescind a purchase for fraud where the entire consideration was paid by him or for his benefit and he alone was defrauded.
    
      A person who furnished part of the consideration at his request is a stranger to the transaction and her remedy, if any, is at law since her cause of action did not follow the land conveyed as part of the consideration.
    One rescinding a contract for fraud cannot retain himself, or withhold through another, any benefit derived.
    A book itself is the best evidence of its contents and should be produced or its non-production accounted for before a copy can be put in evidence.
    Appeal by the defendants, Catherine E. Pierce and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of April, 1907, upon the decision of the court rendered after a trial at the New York Special Term canceling a deed upon the ground of fraud, directing that a sufficient warranty deed be executed, and also directing an accounting.
    
      John M. Gardner, for the appellants.
    
      Franklin Bien, for the respondent.
   McLaughlin, J.:

In 1893 the plaintiff owned a lot of land in the city of Brooklyn and the defendant Catherine E. Pierce had a lease of a livery stable in the city of New York and owned its good will, stock, fixtures and contents. In consideration of $11,000 Mrs. Pierce transferred such business, including an assignment of the lease, to plaintiff’s husband, James F. Guilfoyle. Two thousand dollars of the consideration was paid in cash; $1,000 by the assignment of a bond and mortgage; $3,500 by a conveyance of plaintiff’s property, and the balance, $4,500, by the giving of a chattel mortgage on the property transferred. Guilfoyle continued in possession of the property transferred to him for several months, when he brought an action to rescind the contract of purchase on the ground that he was induced to make the same by false representations of the defendant Catherine E. Pierce as to what the stable was earning. In that action a receiver was appointed of the property conveyed by the plaintiff to Catherine E. Pierce, to whom, by direction of the court, Mrs. Pierce conveyed the same, to be disposed of by him as the judgment in the action might direct. Guilfoyle was defeated in his action at the March term, 1895, and his complaint was dismissed on the merits and on appeal the same was affirmed. (Guilfoyle v. Pierce, 4 App. Div. 612.) In May, 1898, the receiver, by an order of the court, conveyed the Brooklyn property to the defendant Frances M. Pierce, who is a daughter of Catherine E. Pierce. This was done pursuant to an order which amended the judgment pursuant to directions on appeal. (Guilfoyle v. Pierce, 9 App. Div. 1.) On June 10, 1896, this action was commenced to set aside the deed of the Brooklyn property on the ground that such conveyance was the result of a fraud practiced upon the plaintiff by Catherine E. Pierce as to the profits of the livery stable at the time the same was transferred to plaintiff’s husband. The receiver did not at once convey in pursuance of the judgment as amended to Frances M. Pierce, and thereupon a proceeding was instituted to compel him to make such conveyance, which resulted in an order to that effect, pursuant to directions on appeal. (Matter of Pierce v. Lees, 17 App. Div. 346.) Thereafter this action was brought to trial (the receiver in the meantime having died) and the complaint was dismissed — the court, as appears from his opinion, holding that there were fraudulent representations made upon which plaintiff relied, which would necessitate setting aside the deed were it not for the fact that the judgment in the action brought by James F. Guilfoyle was controlling. Subsequently an application was made to vacate the judgment in the James F. Guilfoyle action and for a new trial on the ground of newly-discovered evidence. The motion was granted and a new trial ordered, and then a motion was made to vacate the former judgment in this action and a similar order was made. After a new trial had been ordered in the action brought by James F. Guilfoyle he died and that action has not again been tried. Subsequently this action came on for a second trial and resulted in a judgment in favor of the plaintiff, setting aside the deed and directing a-reconveyance to her. It is from this judgment 'that the present appeal is taken.

I know of no theory upon which the judgment appealed from can be affirmed. James F. Guilfoyle was the purchaser of the stable. The entire consideration was paid by him or for his benefit, and he .alone, if any one, was defrauded by that transaction. The fact that the plaintiff furnished for him a part of the consideration did not enable her to get back such consideration in case he was defrauded. He alone could maintain an action to rescind the purchase, and it was only in his action, that the issue of its rescission could be tried. The plaintiff, in legal effect, was a stranger to the transaction. She had no interest in the purchase of the stable. She furnished part of the consideration, but that was at her husband’s request and for his benefit. He could not obtain a rescission without restoring, or offering to restore, Catherine E. Pierce to her original position. He could not retain in himself, or withhold through another, any benefits derived from the contract. (Francis v. N. Y. & B. El. R. R. Co., 108 N. Y. 93.) If the plaintiff was induced to furnish to her husband a part of the consideration •— that is, the conveyance of the Brooklyn property — by reason of the fraud practiced upon her by the defendant Catherine E. Pierce, then it may be that she could maintain an action to recover damages for such fraud. Such action, however, would be at law. She could not maintain an action in equity to set aside the conveyance, since her cause of action, if any, did not adhere to or follow the land conveyed. (Tyson v. Ranney, 89 Wis. 518.)

At the trial, to establish the fraud, plaintiff was permitted, against the objection and exception of defendants, to introduce in evidence a copy of a portion of a book kept by Catherine E. Pierce while she was in possession of the livery stable. This was secondary evidence. The book itself was the best evidence of its contents, and should have been produced or its non-production accounted for. When James F. Guilfoyle took possession of the stable he also took possession of the book, and at the trial of the action which he brought against Catherine E. Pierce such book was then in his possession or the possession of his attorney, and was there used. (Guilfoyle v. Pierce, 4 App. Div. 612.) What has since become of it does not satisfactorily appear. Clearly sufficient ground was not laid for introducing secondary evidence of its contents.

The judgment appealed from, therefore, must be reversed and a new trial ordered, with costs to appellants to abide event.

Ingraham, Clarke and Scott, JJ., concurred; Houghton, J., concurred in result.

Judgment reversed, new trial ordered, costs to appellants to abide event.  