
    Van Vechten et al. v. Van Vechten.
    
      (Supreme Court, General Term, Third Department.
    
    September 14, 1892.)
    1. Documentary Evidence—Portion of Letter.
    It is error to exclude a letter material to the issues written by defendant, and offered in evidence by plaintiff, on the ground that a part of the letter has been cut off and is gone, where defendant is asked, as a witness, to state whether the contents of the portion offered are in any way connected with the contents of the portion missing, and he refuses to do so.
    
      2. Competency of Witness—Transactions with Decedent.
    In an action to declare a deed made by plaintiff’s ancestor a mortgage, it appeared that defendant introduced in evidence various letters written by himself to deceased, touching the matters in issue. Defendant was administrator of deceased, and testified that he found the letters among deceased’s papers, and that they were genuine. Held, that defendant was incompetent as a witness to such facts, under Code Civil jfroc. § S29.
    8. Same.
    In such case, it is error to admit such letters in evidence.
    
      4. Same. .
    In such case, defendant introduced in evidence an indorsement on a note which was in defendant’s handwriting, and made prior to the death of deceased. Held, that such indorsement was inadmissible, since it was a declaration by defendant in his own favor, and a transaction between him and deceased.
    Appeal from special term, Clinton county.
    Action by John S. Van Vechten, Catharine Briggs, Mary A. Alvord, and Nellie T. Van Vechten, by William S. Alvord, her guardian ad litem, against Teunis Van Vechten, to have a certain deed absolute declared a mortgage, and another certain deed declared a deed of trust, and for an accounting. From a judgment for defendant, plaintiffs appeal. Reversed.
    Argued before Mayham, P. J., and Putnam and Herrick, JJ.
    
      Cantwell & Cantwell, (William, P. Cantwell, of counsel,) for appellants. Weeds, Smith & Conway, (T. F. Conway, of counsel,) for respondent.
   Herrick, J.

The portion of a letter marked for identification, June 25th, “B,” should have been received in evidence. The defendant says he wrote it, and it is admitted that he sent it to one of the plaintiffs. Its subject-matter has an important bearing upon a material issue in the case. Its reception in evidence was objected to on the ground “that it is only a portion, and that the writing has evidently been mutilated.” The defendant stated “ that pages one and two do not appear to be found, except a portion of page two. These portions appear to have been cut off.” The defendant was asked to take the letter and examine it, and see if he could state the substance of the contents of that portion of the letter that had been cut off. The witness refused to examine the paper, and was sustained in his refusal by the referee. The plaintiff offered to show that the prior portion, stated to have been cut off, had no relation to any of the matters referred to in the paper as then presented. The referee held such evidence incompetent, and excluded it, and also refused to receive the letter in evidence. This, I think, was error. I can see no reason why a portion of a letter containing the whole of a proposition or statement complete in itself, the matter having no connection with that contained in the other portion of the letter, should not be admitted in evidence, especially when the party against whom it is offered in evidence is the writer thereof, is a witness, and is not only given the opportunity, but is asked, to state whether the contents of the portion offered is in any way connected with the contents of the missing portion, and he refuses so to state, and refuses to examine the paper for the purpose of ascertaining by such examination whether he "can determine there was or was not any connection or relation between the contents of the missing portion of the letter and the contents of the portion offered in evidence.

The letters from the defendant to John Van Vechten, deceased, marked “Exhibits 1 A to 12 A,” inclusive, and the indorsement on the $2,400 note from John Van Vechten, deceased, to the defendant, the note and indorsement being Exhibit 12 in the case, were improperly received in evidence. John Van Vechten is the person through or under whom the defendant claims title to the premises in question. The letters purport to have been written by the defendant to John Van Vechten, deceased. The defendant was one of the administrators of John Van Vechten, and he claims to have found these letters in a trunk of John Van Vechten after his death. At the time of writing the letters, or some of them, the defendant was in California. The defendant testifies that the signatures are in his handwriting, placed there at the time the letter or letters bear date. He also' swears that the indorsement upon one or more of them is in his brother’s bandwriting. In Resseguie v. Mason, 58 Barb. 89, where an administrator brought suit upon a claim against the intestate’s son, the defendant offered in evidence certain letters that he testified were written by himself, and found by him among the papers of the deceased. The court said: “The only evidence of their having been written by the defendant to the intestate, or of their having been found amongst the papers of the latter, thus showing that he had received and retained them, was the testimony of the defendant himself; ’’ The objection was taken “that the defendant was incompetent to testify on the subject, under section 399 of the Code, and exception to the ruling admitting the evidence taken. The testimony was clearly incompetent; It related to both a transaction and a communication between, the party testifying and a deceased person, whose claims against such party were the subject of litigation. The provisions of section 399 of the Code relate as w ill to written as to verbal communications. ” Section 399 of the old Code and section 829 of the present Code are substantially the same. See, also, Chaffee v. Goddard, 42 Hun, 147-151; Garvey v. Owens, 37 Hun, 498; Weed v. Hornby, 35 Hun, 580; Denham v. Jayne, 3 Hun, 614.

Exhibit Ho. 12, being the note and indorsement, the defendant swears he also found in the trunk of the deceased; that the indorsement upon it is in his (the defendant’s) handwriting. He says it was made September 2 or 3, 1887. The defendant’s claim is that the testator executed a deed to one Mrs. Briggs, one of the plaintiffs, for the defendant, in consideration of the $2,400, the deed, while in Mrs. Briggs’ name, being delivered to him; and he says that he made the indorsement upon the note at or before the time of the delivery of that deed to him; that afterwards, I assume he means after he.had indorsed ■it, and about September 3, 1887, was the next time afterwards before John’s death that he saw Exhibit Í2; and that after his death he found it in John’s trunk. This points in inferential but unmistakable terms to the making of the indorsement upon the note, and its surrender thus indorsed by the defendant to John. A fact that cannot be proved directly by the witness cannot be established inferentially by his testimony. Grey v. Grey, 47 N. Y. 552; Johnson v. Spies, 5 Hun, 468; Jacques v. Elmore, 7 Hun, 675; Viall v. Leavens, 39 Hun, 291. The indorsement as offered in evidence is a declaration in his own behalf, and the whole affair, as testified to, is clearly a personal transaction between the defendant and the deceased, and inadmissible in evidence. Redfield v. Stett, 4 N. Y. St. Rep. 864. The letters and the indorsement upon the note, together with the testimony I have referred to, seem to me to come clearly within section 829 of the Code of Civil Procedure, and the principle of the cases hereinafter cited. The language and intent of that section embraces every variety of affairs, all means of communication, oral, written, signs, or gestures, direct or indirect, positive or negative, or evidence of facts, the plain inference from which is a personal transaction .between the witness and the party deceased. If the deceased could contradict, explain, or qualify the testimony, if living, it comes within the rule. Tooley v. Bacon, 70 N. Y. 34; Koehler v. Adler, 91 N. Y. 657; Holcomb v. Holcomb, 95 N. Y. 316; Clift v. Moses, 112 N. Y. 426, 20 N. E. Rep. 392; Mills v. Davis, 113 N. Y. 243, 21 N. E. Rep. 68; Nay v. Curley, 113 N. Y. 575-578, 21 N. E. Rep. 698; Heyne v. Doerfler, 124 N. Y. 505, 26 N. E. Rep. 1044; and cases above cited.

Exhibits 18 A and 19 A, being letters from the plaintiff Mrs. Briggs to the defendant, I think were improperly admitted in evidence. They were written after the commencement of the action, and, while the declarations and admissions in them were competent evidence against the writer, they were not against the other plaintiffs. There was no such joint interest between Mrs. Briggs and the other plaintiffs as would render her declarations or admissions evidence against them. And then, too, the letters were written after she had parted with title to the land in question, and after the commencement of the action. They were admitted in evidence generally, not limited in their effect to the writer only. In re Baird's Will, 7 N. Y. St. Rep. 758; on appeal, 14 N. Y. St. Rep. 172, and cases cited.

There are many other exceptions to the ridings of the referee in the reception and rejection of evidence, particularly to alleged violations of section 829 of the Code; but the conclusion at which I have arrived as to the questions I have discussed renders an examination of the other exceptions unnecessary, especially as many of them seem to be determined by the same principle governing those passed upon in this opinion.

For the errors herein referred to, I think the judgment should be reversed, the referee discharged, and a new trial granted; costs to abide the event.

Mayham, P. J., concurs.

Putnam, J.

I “concur in result, ” because I have only had time to examine one of your reasons for reversal, i. e., the reception of the evidence of defendant as to the indorsement, the time it was made, etc. I think, clearly, this was a personal transaction.  