
    Albrecht J. Lerche, App’lt, v. William M. Brasher, as Adm’r, etc., Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed January 18, 1887.)
    
    1. Witness—Examination on party—To what extent allowed—Code, Civil Pro., § 829.
    Action was brought by plaintiff to recover for services rendered by him as attorney and agent to the defendant’s intestate. Upon the trial plaintiff" was asked whether he had been paid. Defendant objected to this question on the ground that it involved a personal transaction with decea ed. The objection was overruled and the witness answered “Mo.” A certified transcript of a power of attorney from the deceased to the plaintiff was also offered in evidence and was objected to as secondary evidence and as no proof of the original. It was admitted by the trial court, saying: “It is no proof that deceased executed it; it is simply proof that a paper of the kind is on record.” Plaintiff then testified, without objection, that he had had the original but had lost it. The certified transcript was then read in evidence under an objection that there was no proof that deceased had ever executed it, and that it was incompetent. The proof tended to show that the deceased owned land in Mew York county. PL intiff was permitted to state in detail the services rendered under an objection i hat such proof necessarily involved a personal transaction with deceased. The question under which the testimony was objected to or as given, was: “ What was done by you, excepting personal transactions or communications with deceased from the time )-ou commenced your labor to the time of his death ? ” Plaintiff’s employment by the deceased was proved by the uncontradicted evidence of third parties. Held, that while answer, “ Mo ” negatived a personal transaction 'with deceased, being equivalent to a declaration that neither the deceased nor tlie administrator had paid for the services rendered, and that the objection was a good one; in the absence of any other evidence on that subject the answer was wholly immaterial, and that a judgment should not be reversed on such a narrow ground.
    2. Same—Certified transcript properly received — Code Civil Pro., § 933.
    The certified transcript of the record of the power of attorney was properly received under 2 Rev. Stat. (6th ed.), p. 1161, § 73, and § 933, Code Civil Procedure.
    3. Same—When plaintiff may state the things which he did.
    When the employment by the deceased is proved by other evidence than that of the plaintiff, the latter may state the things which he did, provided such acts could have been done in the absence of the deceased, and without his immediate or personal participation. The question to the plaintiff above quoted was proper in form, and if any objectionable proof was proffered under it, it was the defendant’s duty to object specifically and move to strike out so much of the answer as exceeded the legitimate scope of the inquiry.
    
      Q. A. Clement, for App’lts; Thomas E. Pearsall, for resp’t.
    
      
       Reversing 37 Hun, 385. This decision also overrules Howell v. Van Siclen (6 Hun, 115), and in effect seems to adopt the opinion of Ch. J. Davis in that case and also sustains Burrows v. Butler (22 Week. Dig., 489), and McKenna v. Bolger (22 Week. Dig., 361).
    
   Finch, J.

The plaintiff brought this action claiming to recover about $2,600 as compensation for services rendered to the defendant’s testator in the character of his agent and attorney. The contract of employment was proved beyond all question, by evidence - wholly uhcontradicted, and of a kind open to no criticism. The services rendered began a few days before January 14, 1880, on which day the plaintiff collected a judgment of about $500 in favor of Van Wyck. On that day the latter by a written instrument, the signature to which was proven and not questioned, appointed plaintiff his “attorney in fact” for all matters pertaining to two actions which were specified. That the employment was earlier than that is evident from a letter of Van Wyck dated December 30,1879, in which he speaks plainly of the existing relation. Other letters are quite as decisive, and on the 10th day of February, 1880, Van Wyck gave plaintiff a general power of attorney covering substantially the transaction of all his business. The employment was further proved by at least one witness who swore to the statements of the testator to that effect.

The general character of the services contracted for and rendered was also shown by evidence outside of anything which fell from the plaintiff. The property of the testator had been taken from him on account of his intemperate habits and placed in the hands of a committee. Van Wyck had become restored to health and capacity and entitled to receive back and manage his property. The committee had placed the estate in the hands of Morris & Pearsall, his attorneys, and in a letter, dated February twenty-seventh, Van Wyck notifies plaintiff that they had agreed to deliver the papers if he (Van Wyck) would care for them, and adds: “I shall not go, and so shall answer. They shall settle with you alone.” That they did so settle the defendant himself proved. The amount of property thus delivered over was about $28,000. The defendant also proved the payment of the Walsh mortgage of $5,500, and the interest upon it, to plaintiff. There was thus clear evidence of the employment and the general naturg of the services rendered outside of any testimony given by the plaintiff in his own behalf. A verdict was rendered in his favor for $750, or about one-quarter of his claim. A motion was made upon the minutes and the exceptions taken to set aside the verdict, and for a new trial, which was granted upon two grounds relating to the admission of. evidence. On appeal the general term affirmed the order, but for other and different reasons.

The trial judge specified two such errors as the ground of his action. On the hearing, after the plaintiff had described the work he had done, he was asked if he had been -paid for it. To this inquiry the defendant objected as involving a personal transaction with the deceased. The objection was overruled, an exception taken and the witness answered “No.” The answer negatived a personal transaction with the testator and was equivalent to a declaration that neither the deceased nor his administrator with the will annexed had paid for the services rendered. But while the objection was a good one, the evidence was wholly immaterial. The plaintiff was not required to prove the negative and payment was an affirmative defense, the burden of establishing which was upon the defendant. No evidence in that direction was offered or given, and striking out the inadmissible answer would in no possible respect affect the result reached. We ought not to reverse a judgment on so narrow a ground.

The trial judge further held that it was error" to admit the transcript from the register’s office of New York of Yan Wyck’s power of attorney. When first offered it was objected to as secondary evidence and as no proof of the original. The court said “it is no proof that Yan Wyck executed it; it is simply proof that a paper of this kind is on record; ” and thereupon overruled the objection and defendant excepted. The plaintiff then testified, without objection, that he had had the original in his possession, but had lost it, and on a careful search had been unable tó find it. At a later period of the case tho power of attorney was read in evidence, against an objection that there was no proof that Van Wyck ever executed it and the paper was incompetent.

By the Revised Statutes (vol. 2 [6th ed.], p. 1151, § 73), a power of attorney authorizing, as did the one in question, the conveyance of real estate, may be recorded in the clerk’s office of any county in which the land affected is situated, and the record be received with like effect as a conveyance. My first impression was that there was not sufficient proof that Yan Wyck owned land situated in New York county, but a careful reading of the evidence shows that, while the proof was not direct and pointed, there is an abundance of it from which the natural and necessary inference of such locality follows. The Code provides (§ 933), that a transcript from a record kept “pursuant to law ” in a public office of the state whose incumbent has an official seal, when properly certified by the officer, is evidence, as if the original was produced. Under these provisions the transcript was properly received in evidence.

The general term in affirming the order for a new trial placed no reliance upon the objections thus considered, but rested its action upon the much more serious ground that the plaintiff was permitted to state in detail the services he rendered in the face of an objection that such proof involved a personal transaction with the deceased. The trial judge stated distinctly and carefully what he intended to' rule. He said that the plaintiff could not testify to an employment or request, but where that was proved by other evidence the party might describe simply the things which he did, provided such acts could have been done in the absence of deceased and without his immediate or personal participation. Acting upon this basis the court excluded all evidence of visits to Van Wyck’s residence or of facts-which Van Wyck, if living, could have directly contradicted by his own oath, and limited the proof to independent facts. These were that plaintiff collected the Erie judgment, the Walsh mortgage and the assets in the hands of the committee, and to effect those results made certain calls upon- the committee and his attorneys, and examinations of records in other counties.

The only objection taken was a general one to the question with which the inquiry began, and that question was “what was done by you—excepting, of course, personal transactions or communications with the deceased, Mr. Van Wyck—from the time you first commenced your labor down to his death ? The objections were thus phrased “as incompetent and calling for transactions with deceased.” The question was proper in form. It called for no objectionable proof, and if any was proffered under it the defendant’s duty was to object specifically and move to strike out so much of the answer as exceeded the legitimate scope of the inquiry. Nothing of this kind actually and in terms occurred. The only further objection taken to the evidence under the provision of the Code was to the inquiry .“how much time ” his detailed services occupied ?

At the close of the case there was an exception to the charge to the jury, in which the judge explained the reasons why he permitted the plaintiff to testify to what he did. Whether those reasons were sufficient or in all respects correct was immaterial. The sole question was whether any of the evidence objected to and admitted was competent under the Code. Some of it we think was. Possibly one objection might be treated as a motion to strike out an answer. To the inquiry proper in form because excluding personal transactions or communications, the witness said: “I went to Morris & Pearsall’s office and got the papers in the case of Van Wyck, by committee, against Ostermyer and Brasher, and went to Albany to prepare the case with Judge Hand for the court of appeals.” The record adds: “ Objection to this evidence renewed, as calling for a transaction with the deceased.”

If we indulge in the_ latitude of treating this, which is the sole specific objection taken, as fairly equivalent to a motion to strike out, we are still of opinion that the two facts related were independent facts, in which the deceased was not personally participator and which if living he could not for that reason have contradicted. They might have been done without his authority or knowledge as were some other acts of the plaintiff, and did not necessarily involve a personal transaction with him. When that inquiry arose by reason of his employment or request the mouth of the witness was closed. If that employment or request in any manner or to any extent rested upon an inference drawn from the character of the acts done, the evidence would be incompetent. But no such error was committed. The jury were expressly warned against it and told “before you can find the fact of the employment you must be satisfied of it by testimony other than his own.”

On this state of the record we think the ruling of the trial judge was not erroneous, and especially for the reason that the facts specifically challenged were substantially proved by the deceased’s own written communications.

The general term intimated a doubt whether defendant’s counter-claim was not erroneously excluded. The court admitted the facts as a defense and excluded them as a counter-claim, and with this ruling the defendant seems to have been contented for he took no exception.

The orders appealed from should be reversed, and the judgment for plaintiff ordered on the verdict, with costs. AJI concur, except Raparlo, J., not voting.  