
    Sophia Preston, App'lt, v. Philip Groben, Resp't.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    Evidence—Declabations of third person, when admissible
    Testimony of defendant as to conversations with and declarations by a third person, not in the presence of plaintiff, which, though part of the res gesta, ordinarily would not have been admissible in evidence against the plaintiff, are admissible where it appears that the transaction out of which the suit arose had been conducted by such third party, as in her own interest, with the consent of the plaintiff.
    Appeal by the plaintiff from a judgment dismissing her complaint, entered in Brie county, on the report of a referee.
    
      D. A. Silver, for app’lt;
    
      F. G Laughlin, for resp’t
   Dwight, P. J.

The plaintiff and defendant entered into an agreement for the purchase by the former from the latter of the stock and good will of a news stand on Main street in the city of Buffalo, afthe price of $1,000, to be secured to the defendant by a quit claim deed from the plaintiff of premises on Bailey avenue, in the same city, with a defeasance to be executed by the defendant, by virtue of which the plaintiff might, at any time within two years, redeem the property so conveyed by her upon payment of the full amount due to the defendant on the purchase of the news business, and of whatever sums the defendant should have paid out for taxes, assessments and interest on a mortgage on the premises so conveyed to him.

The evidence seems to show that the Bailey avenue property really belonged to one Mrs. Kellaher, a sister of the plaintiff, and had been put in the name of the plaintiff as a measure of precaution in view of certain contingent liabilities which had been assumed by Mrs. Kellaher; and that, while the plaintiff was content to bear the responsibility of the transaction with the defendant, Mrs. Kellaher conducted the negotiations, for the most part, as in her own interest, with the consent of the plaintiff.

This view of the relation of Mrs. Kellaher to the property, and the transaction in question, which is well borne out by the evidence and must have been adopted by the referee, disposes of what is the principal exception taken by the plaintiff on the trial of the action. The defendant, in the testimony given by him, relates conversations with and declarations by Mrs. Kellaher, not in the presence of the plaintiff, which, though part of the res gestae, would not have been admissible in evidence against the plaintiff but for the relation in which Mrs. Kellaher stood to the business in hand.

What remains of the case is substantially a question of fact. The agreement above mentioned was carried out The plaintiff executed and delivered her quit claim deed and the defendant his defeasance and bill of sale, and the plaintiff, or Mrs. Kellaher, took possession of the news business. Later the plaintiff executed and delivered to the defendant a second quit claim deed without defeasance, cutting off all the rights reserved to her in connection with the former deed. It is the theory and allegation of the complaint that this second quit claim deed was procured from the plaintiff by fraud, concealment and deceit. On the contrary, it is the theory of the defense that at the time of the original transaction the defendant was assured that the Bailey avenue property was free of incumbrance, except the mortgage above referred to, and that upon such assurance the defendant accepted the deed as security without a search; that soon afterwards he found that the property vas so encumbered by judgments, in addition to the mortgage, as to render it insufficient security for the $1,000 ; that he called upon-Mrs. Kellaher and the plaintiff for further security, when they requested him to sell the property in order to realize what could be gotten out of it to apply on the debt to him, and that to that end the plaintiff consented to give him an absolute deed of all her right, title and interest in the property, which was done.

The action was to set aside both the quit claim deeds and the defeasance, on the ground of a violation by defendant of the trust created by the original agreement, and of fraud in the procurement of the second deed. The two theories of the case are sustained, respectively, by the testimony of the parties; that of the defendant being corroborated by a memorandum in writing of a settlement subsequent to the transaction above mentioned, between the defendant on the one hand, and the plaintiff and Mrs. Kellaher on the other hand, signed by the plaintiff.

The referee held the defendant’s theory of the case to be established and dismissed the plaintiff’s complaint. A careful review of the testimony as it appears in print does not remove from our minds all suspicion that the plaintiff and her sister may have been overreached or unfairly dealt with in these transactions; but we recognize the superior opportunity of an astute and discriminating referee, who had the parties and the witnesses before him, to arrive at the truth; and we are by no means prepared to say that he has misapprehended the just weight of the testimony in the case.

The conclusions of law were correctly based upon the findings of fact, and the judgment entered thereupon must be affirnied.

Judgment appealed from affirmed, with costs.

Macomber and Lewis, JJ., concur.  