
    Lilla L. White, Resp’t, v. Milton S. Price et al., impleaded, App’lts.
    
    
      (Court of Appeals,
    
    
      Filed February 28, 1888.)
    
    1. Evidence—When incompetent because secondary.
    The plaintiff, as it appeared on the trial, was a nun of the Roman catholic church and a member of the Society of the Sacred H< art. In the course of her cross-examination she stated that the regulations in regard to the members of said society holding property were printed, that each m'emb r had a copy, and that she in joining the society agreed to perform and assent to all the regulations laid down in the order. This and other testimony to the effect that whatever propi rty they had belonged to the society was objected to on the ground that it was secondary, the regulations being in writing. Held, that the objection was w ell taken.
    2. Same—When a valid transfer proved.
    
      I-Ield. that the testimony failed to prove any transfer effectual even between the parties and went no farther t1 an to show a subjection of her will, but no manifestation of it by any legal or valid form.
    Appeal from a judgment of the supreme court, general term, fourth department, affirming a judgment in favor of the plaintiff, entered upon the trial of the action by the court, without a jury.
    
      Louis Marshall, for app’lts; William G. Tracy, for resp’t.
    
      
       Affirming 39 Hun, 394.
    
   Danforth, J.

The oppinion of the court at special term,, and the opinion of the general term on appeal from its decision (39 Hun, 394), sufficiently justify the judgment now before us, unless the trial court erred in rejecting, against the objection of the defendant, certain evidence which, as the appellant now contends, would show that the plaintiff had parted with all her interest in the property involved in this action. The testimony of the plaintiff, taken before the trial, shows, among other things, that she was a nun of the Roman Catholic church, “and a member of the Society of the Sacred Heart.” Upon cross-examination by defendant’s counsel she said: “Everything is in common with us, nothing belonging to ourselves.” Asked : “Is there any condition as to the distribution of property belonging to one entering the sisterhood?” The plaintiff objected as immaterial and incompetent, and she said; “Whatever property we have after our vows are taken, belongs to the society.” She also stated that the regulations in regard thereto were printed, that each member had a copy, and that she, in joining the society, agreed to “perform all the regulations laid down in the order.” The objection was renewed, “that the evidence is inadmissible on the ground that it is secondary, the regulations being in writing.” She stated that she brought the action because “I thought it was my duty to the society to which I belonged to do it.'"

The testimony indicates only that so far as might be she had ceased be earthly-minded and, with a desire to be wholly occupied with her future obligations, was willing to devote her substance to the interests of the order to which she belonged. It fails to prove any transfer effectual even, between the parties, and goes no farther than to show a subjection of her will, but no manifestation of it by any legal or valid form. No transfer of title was established, if we take her words in the broadest sense. But in any view the objection that better evidence existed as to what she had really done, was a good one, and the trial judge committed no error in sustaining it. The plaintiff’s cause of action was meritorious, her resort to a court of equity necessary; the points made against her recovery are, in view of the consideration already given to them by the court of original jurisdiction and by the general term, invalid, and suggest no reason for a continuance of the litigation.

The judgment appealed from should, therefore, be affirmed.

All concur, except Huger, Ch. J., not sitting.  