
    CURRY et al. v. LANNING.
    (Supreme Court, Appellate Division, Third Department.
    June 29, 1905.)
    If Trial—Misleading Instructions.
    In an action by administrators de bonis non for the value of lumber which it was claimed defendant had had manufactured under an agreement with plaintiffs’ decedent that each should own one-half of it, defendant claimed that he had purchased decedent’s share from her executor. The court charged that if the executor sold the decedent’s share of the lumber to defendant, plaintiffs could not recover, and that the executor was the proper party for defendant to negotiate with; but after-wards refused to charge that the lumber and title thereto came into the executor’s possession, and left it to the jury to determine this question as a matter of fact. Held, that the instructions were misleading, and constituted reversible error.
    2. Evidence—Books op Account.
    In an action by administrators with the will annexed an account book of a deceased executor, if admissible at all, was competent as a whole, and it was not proper to introduce only certain items.
    Appeal from Trial Term, Tompkins County.
    Action by Edwin Curry and another, as administrators, etc., of Sarah F. Theall, deceased, against Charles V. Fanning. From a judgment for plaintiffs and from an order denying a motion for a new trial, defendant appeals.
    Reversed.
    Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ. '
    Tompkins, Cobb & Cobb, for appellant.
    J. J. McGuire, for respondents.
   HOUGHTON, J.

The action was originally begun in justice court for goods had and received from plaintiffs’ testatrix, and on appeal to the County Court a new trial was had. The defendant worked the farm in which the testatrix had a life estate on shares. Shortly before her death the defendant and testatrix agreed that the defendant should cut certain timber on the place, and have it sawed into lumber, and for his work he should have one-half the lumber, each paying one-half the saw bill. The timber was cut before the decease of testatrix, she leaving a will in which one Brewer was named as executor, who qualified and entered upon the discharge of his duties, and subsequently died. Prior to the commencement of this action these plaintiffs were appointed administrators de bonis non with the will annexed. Many objections were made and exceptions taken in the course of the trial, both to the relevancy of the proof under the pleadings and to its competency upon the various issues, not all of which need be considered. The lumber forms the larger item which must have gone to make up the verdict of the jury. The plaintiffs claim that the defendant took his own half as well as that of the testatrix. To prove this fact they showed admissions of the defendant in which he stated that he had taken all of the lumber, but that he bought it of Brewer, the deceased executor, and paid him for it; and the defendant upon the stand swore to the same thing. By the same admission, therefore,- which showed that the defendant had the lumber, the plaintiffs proved that it had been paid for. The defendant made many requests to charge, amongst them that if the jury found that Brewer sold testatrix’s part of the lumber to the defendant, the plaintiffs could not recover for it, and the court so charged; and further charged that Brewer, the executor, was the proper party for the defendant to negotiate with. Subsequently, however, the defendant asked .the court to charge that the timber, before it was converted into lumber by being sawed, having been cut before the death of the testatrix, came into the executor’s possession, and the title came to him. The court declined to charge this, and left it to the jury as a question of fact, to which the defendant excepted.

It is difficult to say what the jury understood from these inconsistent charges. The timber had been severed from the real estate prior to the death of the testatrix, and, if she had any title, that title passed to her executor, Brewer. If the defendant purchased the lumber from him, he got a good title, and if he paid for it he did’ not owe these plaintiffs anything on account of it. This was not made plain to .the jury. If the jury followed the instructions of the court with reference to not considering certain items upon which testimony had been given, they could not have rendered the verdict which they did without charging the lumber against the defendant. The error, therefore, was so material that it calls for a reversal of the judgment.

The plaintiffs were also permitted, under the objection of the defendant, to prove that the account book of Brewer with the estate contained only certain items relating to the defendant’s payment of money. If the book was competent at all, it was competent as a whole, and it was not proper to introduce only certain items.

The question is raised that the complaint is insufficient to cover any property purchased through the deceased executor for which he did not receive pay.' That question we-have not considered. On the new trial which we feel constrained to order the question may not arise.

The judgment must be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.  