
    Mary C. Bank, Appl’t, v. Augustus H. Grote et al., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed June 5, 1888.)
    
    1. Evidence—Competency op under Code Civ. Pro., § 839.
    On the trial of an action of ejectment, it appeared that if the title to the real estate was in the surviving partners of a certain firm, the action could not he maintained. The defendants called as a witness S., the grantor of the premises to Grote, who was the deceased partner in said firm, the surviving members of which, as defendants alleged, were the owners as such of the land in question. Said witness was asked by the defendants to state the personal transaction which took place between the witness and Grote at the time of the sale of the premises and the execution of the deed. Held, that the evidence was not within the mischief of Code Civil Procedure, section 839. That the witness was wholly disinterested.
    S. Same—Partnership property — Through whom: title derived WITHIN SAID SECTION.
    The plaintiff claimed by will from said Grote. The defendants sought to destroy that claim by proof that the surviving partners had title through Grote as the grantee for the partnership, and for which he was a trustee, and from whom each had a deed of a designated interest in the property. Held, that this made Grote the individual who had the whole legal title, and that the defendants did not derive their title from, through or under S., and did not succeed to his title or interest within the meaning of the said section. That they derived such title from Grote.
    3. Same—Oral evidence admissible to show a grantee is a trustee.
    Oral evidence is admissible for the purpose of holding the grantee in said deed as trustee for the firm.
    Appeal from a judgment of the general term of the superior court of New York city, affirming a judgment in favor of the defendant entered upon a verdict of a jury directed by the trial judge.
    
      Amasa J. Redfield, for appl’t; G. W. Cotterill, for resp’ts.
   Peckham, J.

The documentary evidence in this case showed title in the plaintiff to a oné-third interest in the land in question. That is all the evidence which was offered on her part. The defendant then offered evidence which was received for the purpose of explaining the documentary proof given on the part of the plaintiff, and to show that the real .estate in question was actually partnership property purchased for the purposes of the partnership, and paid for with partnership funds.

After a careful perusal of all the evidence taken on the trial (and it was uncontradicted), we think the case for the defendant was so conclusively proved as to leave no question for the jury. . It is quite unnecessary to set forth here the evidence which was thus taken. We have given the able argument of the appellant full consideration, but our opinion in regard to the conclusive character of the evidence for the defendant remains the same.

It is conceded that if the title to the real estate was in the partners surviving, this action of ejectment cannot be maintained. Upon the trial the defendants called as a witness William Steinway, who was the grantor of the premises in question in the deed from William Steinway and wife to Frederick Grote. The grantee, Frederick Grote, was the deceased partner in the firm, the surviving members of which, as defendants alleged, were the owners as such of the land in question. When the witness, Steinway, being such grantor, was asked by the counsel for defendants to state the personal transaction which took place between the witness and the deceased grantee and partner, at the time of the sale of the premises, and the execution of the deed, the plaintiff’s counsel objected to the evidence as not admissible for several reasons, one of which was that section 829 of the Code prohibited it.

We do not think the evidence is within the mischief of the statute. The witness was wholly disinterested in the question in reference to which he was sworn. To make it out partnership property, did not render the surviving partners personally liable to pay for the land, in the absence of any personal obligation, for the method of payment was agreed upon, and was in writing, and did not include the personal obligation of either*.

Nor does it seem to us that the facts of this case make out the witness to be a person from, through or under whom the defendants derived their interest or title within the meaning of the statute under consideration. The person from, through or under whom the title came within that meaning was, as we think, Frederick Grote, the deceased partner and grantee. The plaintiff claims by will from him, and the defendants seek to destroy that claim by proof that the surviving partners have title through Frederick Grote, as the grantee for the partnership, and for which he was a trustee, and from whom each had a deed of a designated interest in the property. This makes Frederick Grote the individual who had the whole legal title, and the defendants did not derive their title from, through or under Steinway, and do not succeed to his title or interest within the meaning of the section mentioned; but do derive such title from Frederick Grote. The evidence was not, therefore, objectionable on that ground.

The other ground of objection was that the oral "evidence was inadmissible to alter the effect of the deed from Steinway to Frederick Grote. Such evidence is clearly admissible for the purpose of holding the grantee as trustee for the firm. See Fairchild v. Fairchild (64 N. Y., 471).

There are no other exceptions which require notice.

The- judgment should be affirmed with costs.

All concur.  