
    John S. Van Vechten et al., App’lts, v. Teunis Van Vechten, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 14, 1892.)
    
    1. Evidence—Portion of letter complete in itself.
    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, may properly be admitted in evidence.
    
      2. Same—Code Civ. Peo. § 829.
    In an action to have a deed declared a mortgage, given as security for the payment of a certain note, letters from the defendant to J, the original grantor", deceased, and the endorsement on the note from J, to defendant, were received in evidence, defendant testifying that he found them in a trunk of J’s after his death, and that the signatures were his own, placed there at the time the letters bear date; and also testified as to the date of the endorsement. Held, incompetent, under § 829 of the Code.
    3. Same.
    In such action, letters from plaintiff B, to defendant, written after she had parted with the title to the land in question, and after the commencement of the action, were received in evidence, generally. Held, that they were improperly admitted in evidence; that while the declarations and admissions in them were competent against B, they were not against the other plaintiffs.
    Appeal from a judgment in favor of defendant entered upon the report of a referee.
    
      Cantwell & Cantwell (William P. Cantwell, of counsel), for app’lts; Weeds, Smith & Conway (T. F. Conway, of counsel), for resp’t.
   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 ex-' amine 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 he 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 Yan Yechten, deceased, marked exhibits 1 A to 12 A, inclusive, and the endorsement on the $2,400 note from John Van Vechten, deceased, to the defendant, the note and endorsement 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’s 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 endorsement upon one or more of them is in his brother’s handwriting.

In Ressequie 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 § 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 1 communication ’ between the party testifying and a deceased person whose claims against such party were the subject of litigation. The provisions of § 399 of the Code relate as well to written as to verbal communications.” Section 399 of the old Code and § 829 of the present Code are substantially the same. See also Chaffee v. Goddard, 42 Hun, 147-151; 3 St. Rep., 386; Garvey v. Owens, 37 Hun, 498; Weed v. Hornby, 35 id., 580; Denham v. Jayne, 3 id., 614.

Exhibit No. 12, being the note and endorsement, the defendant swears he also found in the trunk of the deceased; that the endorsement upon it is in his, the defendant’s, handwriting. He says it was made September 2d or 3d, 1867.

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 endorsement 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 endorsed it, and about September 3, 1867, was the next time after-wards before John’s death that he saw exhibit 12; and that after his death he found it in John’s trunk. This points in inferential but unmistakable terms to the making of the endorsement upon the note, and its surrender thus endorsed 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 id., 675; Viall v. Leavens, 39 id., 291.

The endorsement 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 St. Rep., 864.

The letters and the endorsement upon the note, together with the testimony I. have referred to, seem to me to come clearly within § 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 id., 657; Holcomb v. Holcomb, 95 id., 316; Clift v. Moses, 112 id., 426; 21 St. Rep., 777; Mills v. Davis, 113 N. Y., 243; 22 St. Rep., 580; Nay v. Curley, 113 N. Y., 575-81; 23 St. Rep., 496; Heyne v. Doerfler, 124 N. Y., 505; 36 St. Rep., 497, 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. Matter of Will of Baird, 7 St. Rep., 758; S. C. on appeal, 14 St. Rep., 172, and cases cited.

There are many other exceptions to the rulings of the referee in the reception and rejection of evidence, particularly to alleged violations of § 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.

Eor 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 endorsement, the time it was made, etc. I think clearly this was a personal transaction.  