
    Patrick Mitchell, as Survivor, App’lt, v. Robert I. Cochran and Clara A. Cochran, Resp’ts.
    
      (Supreme Court, General Term, Third Department
    
    
      Filed July 7, 1890.)
    
    Evidence — Transaction with deceased person — Code Civ. Pro., §829.
    In an action for foreclosure, certain witnesses having testified that defendant paid money to one of the mortgagors, now deceased, and that the latter agreed to give a satisfaction, plaintiff testified that such money was given to deceased, his brother, to give to him to purchase coal and iron with for defendant; that such money was given to him and that he made such purchase. Held, that plaintiff thus indirectly testified concerning the transaction between deceased and defendant, and this gave the latter the right to testify directly concerning it.
    Appeal from a judgment entered in Fulton county, in favor of the defendants, upon the report of a referee.
    The action was to foreclose a mortgage given by the defendants to'the firm of P. & J. Mitchell, August 19, 1876, for $260. The execution of the mortgage and bond accompanying it was not contested, but the answer alleged that it was giveiPwithout consideration, and also payment.
    . The referee found that there was no consideration for either bond or mortgage.
    
      L. L. Boyce, for app’lt; B. P. Aníbal, for resp’ts.
   Landon, J.

The principal question is as to the admissibility of the testimony of the defendant, under § 829, Code Civil Procedure.

The witnesses Hanley and Peck testified on behalf of the defendants to the effect that John Mitchell, one of the mortgagees and partners of whom plaintiff is the survivor, and the defendant Eobert Cochran had some conversation in October or November, 1876, about a mortgage and that he saw Cochran pay John sixty dollars, and John then said he would send up a satisfaction in a few days; that that made them all square. The plaintiff, the surviving partner, then testified in his own behalf that in October, 1876, the defendant asked him to go to Amsterdam and get some coal and iron for him, and that he would give him the money for the purpose. Speaking with reference to a few days later, the plaintiff continued thus: “He (the defendant) gave John sixty dollars to Land to me to go to Amsterdam and get coal and iron, and pay for it; I was not at home; when I came home John gave me the sixty dollars and I went the next week and got the coal and iron.”

The defendant Cochran in his own behalf, the plaintiff’s objection under § 829, Code Civil Procedure, being overruled, then testified with respect to the transaction between him and John Mitchell, the deceased partner, as follows: “ I came up to the bar and said to John Mitchell, here is sixty dollars balance of that ninety dollars I borrowed of you, and this makes us all square; he said it did; I spoke to him about the mortgage; I told him I wanted that taken care of, and he said I will send you a satisfaction in a few days; that is the only sixty dollars I paid to John Mitchell in October, 1876; nothing was said about Pat (the plaintiff) taking that sixty dollars and going to Amsterdam to get coal and iron; he went after coal and iron in 1874; I did not in 1876, nor at any other time, give John Mitchell sixty dollars and request him to hand it to Pat to go to Amsterdam and get coal and iron.” The plaintiff’s several motions to strike out the parts of this testimony relating to the personal transaction with John Mitchell were denied, and plaintiff duly excepted.

It is obvious that the plaintiff testified to what John told him the defendant handed him the sixty dollars for. He testified to the interview between John and himself, but not directly to the interview between John and the defendant. If the defendant had-chosen to object to the testimony, we perceive no ground upon which the referee could have admitted it.

But the defendant was not obliged to object If the plaintiff chose to give testimony which by clear inference showed that the defendant gave John sixty dollars for coal and iron and not to satisfy the mortgage, then the plaintiff indirectly testified concerning the transaction between John and the defendant, and" thus permitted the defendant to testify concerning the same. The plaintiff’s testimony had no materiality except as it touched the transaction between John and the defendant, and the inference from it, if accepted by the referee, was fatal to the version of the transaction given by Hanley and Peck. It detailed a transaction between the deceased and the plaintiff which had its origin and character in the transaction between the deceased and the defendant. The testimony of plaintiff unfolded by indirection the latter transaction, and hence the defendant could directly testify respecting it. Clift v. Moses, 112 N. Y., 426; 21 N. Y. State Rep., 777.

The case is not without difficulty upon the facts. We are inclined to think that when the mortgage was giveri the defendants did owe the firm sixty dollars, and the mortgage was made for $260 in anticipation of further advances to the defendant, or to protect the defendant from other creditors. The evidence is quite satisfactory that the defendant paid the sixty dollars to John Mitchell, and that the latter admitted satisfaction and promised to give the proper evidence of it, but never did. It is reasonably clear that the plaintiff has confounded transactions prior to the mortgage and distinct from it with the transactions affecting the mortgage. That the defendant at one time offered to pay the plaintiff $160 to settle the mortgage is not disputed, but this probably was for the sake of peace and not as si tender. We think the finding for the defendant accords with the justice of the case.

Judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.  