
    Nettie Newgass, Respondent, v. Auburn Loan Company and Willard Hoagland, Appellants.
    
      Evidence — declarations of a mortgagor of a horse, as to its ownership, after the giving of the moi'tgage.
    
    In an action to replevy a 'horse which the defendant claimed under a chattel mortgage executed by the plaintiff's deceased husband and which the plaintiff claimed under an alleged gift made to her by her husband prior to the execution of the chattel mortgage, evidence of declarations made by the deceased husband after the execution and delivery of the chattel mortgage to the effect that the horse belonged to his wife, is incompetent.
    Appeal by the defendants, the Auburn Loan Company and another, from a judgment of the County Court of Cayuga county in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 14th day of July, 1902, upon the verdict of a jury reversing, upon appeal, a judgment of the City Court of the city of Auburn in favor of the defendants, entered on the 22d day of July, 1901, and also from an order of said County Court, bearing date the 17tli day of July, 1902, and entered in said clerk’s office, denying the defendant’s motion to correct the said judgment of the County Court.
    The action is in replevin, and was commenced in the City Court of Auburn on the 27th day of May, 1901, to recover possession of a horse, wagon and harness of the alleged value of $250. The case was tried before the City Court without a jury, and resulted in a decisión dismissing the complaint upon the merits, and judgment was entered accordingly, with costs. An appeal was taken by the plaintiff to the County Court for a new trial, and the case was tried before the County Court and a jury, and resulted in a verdict in favor of the plaintiff for $175, which was found to be the value of the property, and judgment was entered in favor of the plaintiff for that sum, together ■ with $100.70 costs. From the judgment so entered,, and from an order denying defendants’ motion for a new trial, this appeal is taken.
    
      Hull Greenfield, for the appellants.
    
      Oscar Tryon, for the respondent.
   McLennan, J.:

Plaintiff claims to be the owner of the. property which is the subject of dispute, consisting of a horse, wagon and harness, and to be entitled to the possession thereof under an alleged gift from Lewis Newgass, her deceased husband, and the defendants claim to own, the property by virtue of a chattel mortgage dated the 9,tli day of June, 1900, executed by the plaintiff’s deceased husband and delivered to the defendants by him in his lifetime. Concededly, the horse in question was purchased by Mr. Newgass, plaintiff’s husband, in 1895 or 1896, and it appears substantially without contradiction that it was purchased for the purpose and with the intent on the part of Mr. Newgass of making a present of the same t-e his ■wife. Whether or not such gift,was actually made and consummated by delivery is, under the evidence, a sharp question.of fact. Apparently the horse and wagon were used in common by the plaintiff and her husband, and it cannot be said that either had exclusive possession of the property as against the other. ■ The husband, apparently, used the property at will, procured it to be cared for at his expense, and did no act in connection therewith which may be said to be inconsistent with 1ns ownership. In fact, when he executed' and delivered the chattel mortgage in question to the defendants he in effect declared that he was the sole- owner of such property. Under these circumstances it was important that no incompetent evidence should be received bearing upon the question as to whether or not a gift of the property had actually been made by the husband to the wife prior to the execution of defendants’ chattel mortgage. We think incompetent evidence was received over defendants’ objection, and for that reason the judgment appealed from must be reversed.

One witness, a Mr. Brown, was permitted to state that in September or October, 1900, several months after the chattel mortgage in question was executed, the deceased husband said : “There is no necessity of that (hiring another horse), I will ask my wife to use her horse and carriage for that purpose and I know she will let us have it.” Several other witnesses were permitted, under defendants’ objection, to give declarations of Mr. Newgass after the execution and delivery by him of the chattel mortgage in question, to the effect that the property in question belonged to his wife. We think the admission of such evidence clearly constituted reversible error.

The rule is correctly stated in Woodruff v. Cook, (25 Barb. 505) as follows : “ The declarations of a former owner of property made subsequent to an alleged gift or transfer thereof by him, are not admissible evidence in an action by his administrator against the person claiming to hold such property under and by virtue of such gift or transfer.”

The same rule must apply when such evidence is' given to support such gift as against a person claiming the property by virtue of another conveyance.

In the case of Flannery v. Van Tassel (131 N. Y. 639) it was held that where a sale of goods is attacked by the creditors of the vendor as. fraudulent, the vendor’s declarations to third persons after the sale respecting the transaction are not competent against the vendee.

In the case at bar the claim of the plaintiff is that the property in question was purchased by her husband and given to her as early as 1895 or 1896, and that from that time-on she had title to the same. A great part of the record is made up of alleged declarations of the husband, made subsequent to that time, to the effect that his wife was the owner of the property. Many of such declarations were in no sense a part of the res gestee and did not throw any light upon the question of who was in the possession or had control of the 'property. Such declarations were incompetent, and it cannot be said that their reception in evidence was not prejudicial to the defendants.

Without discussing the many other questions raised by the appeal, we think, for the reasons indicated, the judgment and order appealed from should be reversed.

Adams, P. J., Williams, Hiscock and Nash, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event.  