
    Mayor, Etc., City of New York v. Fay.
    
      (Supreme Court, General Term, First Department.
    July 9, 1889.)
    1. Evidence—Admissions in Pleadings.
    In an action against defendant as executrix of K., in which plaintiff alleged that K. and. one IT. were partners in the contract sued on, it was error to admit in evidence a portion of defendant’s answer in an action brought against her as executrix by IT., wherein she alleged on information and belief that K. and IT. were jointly interested in the contract here sued on.
    2. Same—Referee’s Findings.
    The finding of a referee in the action by IT. against defendant, substantially in accordance with the allegation of her answer, was likewise inadmissible.
    Motion for new trial on exceptions.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Henry li. Beekman, Corp. Counsel, (William, L. Turner, of counsel,) for plaintiff. Baniel Daly, for defendant.
   Van Brunt, P. J.

This action was brought to recover a sum due upon a contract made between the plaintiff and a copartnership alleged to have been composed of James T. Keenan, the defendant’s testator, and one Thomas Hu gent. The defendant by her answer having denied the copartnership, it became necessary for the plaintiff to prove the same, and the only evidence which was offered to substantiate this allegation of the complaint was a portion of the answer of the present defendant as executrix in an action begun against her by Eugeni, in which she alleged on information and belief that the said FT agent and Keenan were jointly interested in a contract with the department of street-cleaning of the city of Hew York, and also a finding by the referee in said action in substantial accord with the allegation in the answer. This proof was duly objected to, the objection was overruled, and upon this evidence alone was based the direction of the court that the allegation of partnership contained in the complaint in this action was made out. In this we think there was error. It is true that admissions in pleadings in an action between other and different parties have been received in evidence by the courts. The ground upon which these admissions have been received has been because they were admissions against the interest of the party making them, and because of the great probability that a party would not admit or state anything against himself or against his own interest unless it was true. And, furthermore, these admissions have been confined to those cases where the admissions contained the assertion of facts which from the nature of the case, if true, must have been within the knowledge of the party making the admission, and the pleading is verified by him. These rules are laid down in the case of Cook v. Barr, 44 N. Y. 157, and their application is apparent. Therefore an admission contained in pleadings between other parties, simply founded upon information and belief, where there is no presumption that the facts alleged or denied must have been within the knowledge of the party making the allegation or denial, and where the allegation or denial is not against the interest of the party making the same, cannot be received in evidence as establishing any fact. In the case at bar the alleged admission was not against the interest of the defendant, who was asserting a right in respect to a fact as to which there is no presumption that she had any personal knowledge whatever. Therefore the two elements which are necessary to exist in order to justify the admission of this allegation of the pleadings are conspicuously absent, and under no rule of evidence could it be admitted. The admission gains no force from the fact that subsequently the referee in the case in which the admission was made found the statement to be correct. Heither would it lose any force by the fact of a finding in that action that the admission or statement was not correct. It is entirely immaterial as to its admissibility in evidence what has become of the action in which the admission has been made. Therefore the finding of the referee in the action in which the admission was made was entirely immaterial. It did not conclude the plaintiff in this action, and therefore it could not conclude the defendant, because estoppels must be mutual. There seems, therefore, to have been error committed in the receipt of this admission, and also in the receipt of the finding of the referee in the action in which that admission was made. Notwithstanding the authorities cited upon the part of the plaintiff to sustain the admission of the finding, we think that as the parties were different, and, as the finding could not have been offered in evidence in favor of the defendant, it may not be used against her. The judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.  