
    Lizzie J. Van Gaasbeek, as Administratrix, etc., of Abram H. Van Gaasbeek, Deceased, Respondent, v. Stephen Staples, Appellant, Impleaded with Cornelia H. Staples, Defendant.
    
      Testimony as to declarations of a decedent by a biased witness may be disregan'ded.— the recording of an assignment of a mortgage is evidence of its delivery — a surrogatds decision that the decedent was a resident of his county — it cannot be attacked collaterally.
    
    Where upon the trial of an action the wife of the defendant, who is evidently greatly biased in his favor, testifies to declarations made by persons since deceased, the weight to be given to her testimony is for the jury to determine, and they may, if they choose, reject it.
    The recording of an assignment of a mortgage is sufficient to sustain a finding that the mortgage was delivered to the assignee.
    Where a surrogate, upon an application to him for letters of administration, determines, upon a sufficient affidavit, that the decedent was a resident of the county at the time of his death, the surrogate’s jurisdiction to issue the letters cannot, in the absence of collusion or fraud, be attacked in an action brought by the administratrix, on the ground that the decedent was not a resident of the county.
    Appeal by the defendant, Stephen Staples,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 20th day of October, 1902, upon the decision of the court, rendered after a trial at the Ulster Trial Term, adopting as part of it a special verdict on submitted questions after a dismissal of the complaint by direction of the court as to the defendant Cornelia H. Staples, and also from an order entered in said clerk’s office on the 15th day of October, 1902, denying the appellant’s motion for a new trial made upon the minutes.
    The action is brought to set aside an assignment made by plaintiff’s intestate to the defendant Stephen Staples of a certain bond and mortgage, and to compel the delivery of such bond and mortgage to the plaintiff, and for an accounting by such defendant for the moneys collected thereon.
    The bond and mortgage were made in 1894 by one Kraus to Maurice Murphy, who made a written assignment thereof to Abram H. Yan Gaasbeek October 13, 1896, in consideration of $600. The payment for such assignment was made by the check of Eichard M. Yan Gaasbeek, the father of Abram, and the assignment was recorded in the clerk’s office October 16,1896. Abram died December 21, 1900. A few days before his death, and on December 15, 1900, he executed an assignment of the bond and mortgage to the appellant. The respondent insists. that. Abram ■ was not mentally ' competent to execute this assignment. The appellant claims title to the bond and mortgage, not only by virtue of the assignment, .but by reason of a gift of the same to him from Mary P. Yatt Gaasbeek, the widow of Eichard and the mother of Abram. ■ ■ To support this claim it is insisted that the assignment was -taken by Eichard in the name of Abram for the former’s convenience, or to elude taxation, and that the latter never owned the bond and mortgage. By the will of Eichard all his property was bequeathed to his wife. Under this will it is urged that the title to the bond and mortgage passed to Mary, the wife, who in turn, on February 14, 1901, presented and delivered 'them without written assignment to the appellant. Subsequent to that time the appellant had collected the interest and also fifty dollars on account of the principal of such-bond and mortgage.
    Upon the- trial the court submitted the following questions to the jury, who answered them as follows: • '
    “I. Was Abram H. Yan Gaasbeek, at the time of the execution by him of - the assignment of the bond and mortgage in question to Stephen 'Staples, mentally competent to execute the same ? ■ * * * (Ans.) Ho. - -
    “II. Was Abram H. Yan Gaasbeek, at the time of the execution by him of' the assignment of the bond and mortgage in' question to Stephen Staples, the owner of said bond and mortgage■? * *' * (Ans.) Yes.”
    The court adopted this verdict of the jury and decided that such assignment was void; that such bond and mortgage and the assignment thereof from Murphy to Abram H. Yan Gaasbeek should be delivered to the plaintiff, and that the plaintiff recover from the defendant the amount that he had collected on the bond and mortgage. Judgment' was entered on the decision, and the defendant Stephen. Staples has appealed.
    
      G. It. Adams, for the appellant.
    
      Ohcmdler A. Oakes, for the respondent.
   Chester, J.:

The question as to whether Abram H. Van Gaasbeek was mentally competent to execute the assignment of the bond and mortgage at the time he executed it was a question of fact to be determined in the case and was properly submitted to the jury and the evidence was abundant to support the verdict that he was not.

It is strongly urged by the appellant’s counsel that there was no evidence to justify the submission of the other question to the jury, .as to whether or not Abram was the owner of the bond and mortgage at the time he assigned the same to Stephen, the claim being, first, that there was no evidence of a delivery of the bond and mortgage with the assignment thereof to Abram so as to devolve the title to the same on him, and, second, that the evidence is uncontradicted that the papers were in the possession of Richard until his death and after his death in that of his wife; that payments of principal and interest were all made to them until the assignment to ■Stephen and after that to him; that there was a confidential relation between father and son under which the former owned the bond and mortgage notwithstanding the record title was in the name of the son. In other words, that the son held them in trust for the benefit of the father. The only evidence to support this theory outside of that relating to payments on the bond and mortgage was given by Mrs. Staples. It is urged that as she was not directly contradicted no question of fact was presented. In Thompson v. Welde (10 App. Div. 125) it was said: “ While it is quite true that both the court and jury are bound by the testimony of unimpeached and credible witnesses, which is uncontradicted, yet, to raise a question for the jury, it is not necessary that the testimony should be contradicted by the affirmative testimony of other witnesses. The •circumstances under which the evidence is given, the relation of the witnesses to the party in whose behalf they testify, and the nature •of the facts to which they testify, may be such as to not only warrant, but require, the court to send the case to the jury, although there may be no witnesses testifying upon the other side. Especially is this likely to be the case where the evidence given is evidence of declarations and admissions alleged to have been made by one who is dead, and who, therefore, cannot contradict them. Oral admissions are, at the best, but an unsatisfactory kind of evidence, and the case is a rare one in which such admissions should be adopted by the court as represénting the precise truth of the case.” Mrs. Staples was the. wife of the appellant and evidently largely biased in his favor. She. testified as to' declarations of Richard and admissions of Abram after the death of both. Under such circumstances .the weight to be given to her statements was clearly for the jury to determine and they had the right if they chose to reject her testimony.

The.fact, that the assignment to Abram was recorded was sufficient evidence to justify the jury in finding that it had been delivered to him. (Sweetland v. Buell, 164 N. Y. 541, 552; Geissmann v. Wolf, 46 Hun, 289.) In addition to this fact there was some evidence, although not very satisfactory, that Abram had had the mortgage in his possession.

I think the two questions were properly submitted to the jury; that the evidence does not so clearly preponderate against their verdict as to justify us in. disturbing it, and that the court properly adopted the. verdict as part of its decision.

The appellant also urges that Abram resided in Brooklyn at the time of his death and that the surrogate of Ulster county had no . jurisdiction to appoint the plaintiff his administratrix, and,'therefore, she cannot maintain this action. But the surrogate upon a sufficient affidavit that Abram was a resident of Ulster county at the time of his death issued letters of administration to the plaintiff. There is no allegation in the answer and no proof that they were obtained by collusion or fraud, and we think they cannot be attacked collator-. ally in this action. (Code Civ. Proc. § 2473; (O'Connor v. Huggins, 113 N. Y. 517.)

The judgment should .be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  