
    DENMAN against JAYNE.
    
      Supreme Court, Second Department, Second District, General Term,
    February, 1875.
    Peincipal and Agent.—Evidence.
    Where a husband borrowed money to stop the foreclosure of a mortgage on his wife’s separate estate, but instead of stopping it, bought in the property at the foreclosure sale, and conveyed it to his creditors in trust to repay themselves the above mentioned loan and subsequent loans on account of the property, and afterwards to hold it for his benefit, and they subsequently conveyed it according to his appointment :—Held, in an action by the representatives of the wife to set aside the sale, &c., that the trustees were entitled to receive from her estate the portion of the sums loaned thereon, which the wife had personally received or acknowledged to be due from her, but not the part that came into the hands of her husband only, and which she had not known of or acknowledged her liability for.
    The act of a party to an action signing a pleading therein in the presence of another party,—Held, “ a transaction between them ” within the proviso of section 399 of the Code.
    
    Maria J. Cornell, the wife of Mark Cornell, owned a farm in Westchester county, subject to a mortgage for three thousand dollars. Mark Cornell procured from the defendants Jayne and M'ercer the sum of five hundred dollars, for the alleged purpose of stopping the foreclosure of the mortgage. He, however, attended the sale thereunder, and bought the property, and assigned his contract of purchase to one Hopper, to whom the conveyance was made.
    Mark Cornell then having received more money from Jayne and Mercer, procured Hopper to convey the property to them, and received from them a declaration of trust that they held the property to pay themselves five thousand dollars alleged to be due them, and for the benefit of Mark Cornell, after such payment.
    Afterwards, Mark Cornell agreed to sell the farm to A. T. Stewart, and called upon Jayne and Mercer to convey it.
    In June, 1871, subsequent to this sale, but before conveyance, which was in August, 1871, Maria J. Cornell brought an action against all the above named persons to prevent the consummation of the sale. A motion in her behalf for an injunction pendente lite was, however, denied, and the sale ordered by the court, which also directed that the purchase money be brought into court.
    A reference was ordered to take proof and report what was due to the defendants Jayne and Mercer from the plaintiff Maria J. Cornell under the declaration of trust. That plaintiff had in her complaint admitted that the sum of five thousand dollars was due thereunder, but by amendment to the complaint this admission was subsequently withdrawn.
    The original plaintiff having died, her heirs-at-law, the present plaintiffs, Ann Eliza Denham and others, were substituted as plaintiffs.
    •The only evidence, on the reference, that the amount due the defendants Jayne and Mercer from Maria J. Cornell, amounted to the sum of five thousand dollars, was her admission in the original complaint.
    The evidence showed that the payment of the principal sum due (part of the five thousand dollars claimed by Jayne and Mercer being for interest) was made by checks, and in cash.- One of the checks (for three hundred dollars) was rejected by the referee as evidence of payment to Maria J. Cornell as not indorsed by her, though payable to her order, but by Mark Cornell. Other checks were similarly payable and-indorsed, and were allowed by the referee, as were checks payable to Mark Cornell’s order direct.
    A due bill of Maria J. Cornell in favor of Jayne and Mercer was proved, on which, including interest, the sum of three thousand two hundred and sixty-two dollars and seventy-seven cents is due.
    There was no evidence that Mark Cornell was expressly constituted the agent of Maria J. Cornell, or that she knew he had received the checks or money.
    The other facts appear in the opinion.
    Miller, Peel and OpdyJce, for the plaintiffs appellant.
    
      LaRoy 8. Gove, for the defendants respondent.
    
      
       See Spicer v. Spicer;, p. 112 of this vol.
    
   Bt the Court.

Tappeh, J.

The defendants held certain lands in trust'for Maria, the wife of Mark Cornell, and to secure to the defendants certain advances of money made by them from time to time for account of Mrs. Cornell. A reference was ordered to determine the amount of these advances, and from an order of the Kings special term, confirming the referee’s report thereon, the plaintiffs appeal. The referee found four thousand seven hundred dollars due the defendants ; the plaintiffs concede that the advances with interest amount to three thousand two hundred and sixty-two dollars, and dispute the balance.

Mark Cornell, the husband, seems to have received the remainder of the money; it was claimed that he was Mrs. Cornell’s agent in the transaction of her business, and had dealings with the defendant in that capacity.

Mr. Cornell was the original plaintiff in this action, the present plaintiffs having on her decease been substituted as her representatives.

Mrs. Cornell signed and verified the first complaint in which it was set forth, that the amount due the defendants was five thousand dollars. The complaint had been prepared under the direction of the defendant, Jayne, who as a witness before the referee (Mrs. Cornell being then deceased) testified that she signed the affidavit in his presence; he also gave testimony going to show generally, that he was acquainted with her handwriting.

The first complaint had been amended, and the amended pleading did not contain the admission relied upon by the defendants. The testimony of Jayne, failed to show that he was acquainted with Mrs. Cornell’s handwriting; the referee admitted the original complaint as evidence of the amount due the defendants Jayne and Mercer. The evidence of Jayne, a party to the action, that he had seen Mrs. Cornell sign it, was evidence of a transaction between them ; it was not admissible under section 399 of the Code (Ressegue v. Mason, 58 Barb., 89).

We see no evidence upon which Mrs. Cornell can be charged with anything beyond the three thousand two hundred and sixty-two dollars.

All the other moneys went into her husband’s hands and constituted his debt, there being no proof that he received them by her authority or for her account.

The amount found due, four thousand seven hundred dollars, should, therefore, be reduced to three thousand two hundred and sixty-two dollars, with interest, and the order modified accordingly. 
      
       Present, Bahhabd, P. J., and Tappbn, J. (Donohue, J., sat at the argument, but was not present when the opinion was handed, down.) .
     