
    Jacob L. Clift, Survivor, etc., Resp’t, v. Lucius Moses, Impleaded, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    1. Bills and notes—Evidence—When non-production of explained SO AS TO PUT MAKER ON HIS DEFENSE.
    On the trial of an action to recover the amount of certain notes, the notes were not produced, but their non-production was explained by showing that they were discounted by and belonged to the banking firm of C. P. & Co. at their date in 1874, of which firm the plaintiff became the survivor by the death of C. P. The defendant Moses, of the firm of J. & M., makers of the notes, had married the adopted daughter of P., and P. lived with them. The notes at the time they were discounted were entered in the books of C. P. & Co., as the property of the firm, and were in a safe in the banking room of the firm in which its other securities were kept. P., in 1874 or 1875 (who was the managing partner of the firm), took the notes from said safe and never returned them to the usual custody of the firm. They were never paid to the bank, so far as appeared from the books, nor was there any entry in the books of the firm showing that the bank had parted with their possession, nor any trace that the debt represented by them had been in any way satisfied or discharged. There was testimony to the effect that two weeks before his death C. P. exhibited the notes, and that they were then uncancelled. After C. P’s. death Moses had the key to the private safe of 0. P., and opened it on one or more occasions before the appointment of an administrator of C. P’s. estate. The plaintiff, who was the survivor of the firm, took no part and had very little knowledge of the bank transactions of 0. P. & Co.: Held, that the plaintiff so far explained and accounted for the non-production of the notes as to put the defendant on his defense.
    3. Evidence—Competency of under Code Civ. Pro., § 829—What is a PERSONAL TRANSACTION WITHIN SAID SECTION.
    Code of Civil Procedure, section 829, prohibits not only direct testimony of the survivor that a personal transaction did or did not take place, and what did or did not occur between the parties, but also every attempt by indirection to prove the same thing, as by negativing the doing of a particular thing by any other person than the deceased, or by disconnecting a particular fact from its surroundings, and testifying to what on its face may seem an independent fact, when, in truth, it had its origin in, or directly resulted from a personal transaction.
    3. Same—When testimony as to independent pact inadmissible.
    The statute cannot be evaded by framing a question which on its face relates to an independent fact, when it is disclosed by other evidence that the fact had its origin in and directly resulted from a personal trans action.
    4. Same—What not suppioient to believe subvivob pbom pbohebiTION OP SAID SECTION.
    Because there arises from a group of independent and separable facts an inference that a personal transaction did or did not take place between the survivor and the deceased, this is no reason for permitting the survivor to rebut such inference by his testimony that he had or had not a personal transaction with the deceased which was inconsistent with such inference.
    5. Same — Possession op thing debived pbom anotheb constitutes a PEBSONAL TEANSACTION WITH SAID PEBSON.
    Possession of a thing derived from another is a personal transaction with the person from whom the possession was derived.
    Appeal from a judgment of the supreme court, general term, fourth department, affirming a judgment in favor of the plaintiff entered upon the verdict of a jury.
    
      Louis Marshall, for app’lt; Win. G. Tracy, for resp’t.
    
      
      Affirming 41 Hun, 640, mem.
      
    
   Andrews, J.

It was incumbent on the plaintiff to account for the non-production of the notes, to rebut the presumption that they had been transferred, or had been paid, or discharged, which in the absence of explanation would arise from their non-possession by the plaintiff. It is a conceded fact that the notes were discounted by, and belonged to the banking firm of C. Pardee & Co., at their date, November 10, 1874, of which firm, by the death of Charles Pardee, in 1878, the plaintiff became the surviving partner. The defendant Moses, of the firm of Dodge & Moses, makers of the notes, had married the adopted daugher of Pardee, and with his wife lived in Pardee’s family in Skaneatelas, where the banking business of C. Pardee & Co. was carried on. Pardee was eighty years old at his death, and a widower, having no children.

The notes at the time they were discounted were entered in the books of C. Pardee & Co., as the property of the firm and were placed in a sáfe in the banking room of the firm, in which its other securities were kept. Pardee, who was the managing partner, occupied an office opening into the banking room, where he superintended the affairs of the bank and transacted his private business, in which office he had a safe in which he kept his private papers.

The notes were taken by Pardee, in 1874 or 1875, to Wisconsin, where a suit was brought upon them in the name of Pardee and Clift against the makers, but was discontinued in August, 1875. The suit was instituted for the purpose of ultimately acquiring the interest of Dodge (the co-maker with Moses of the notes) in certain dredges owned by Dodge and Moses, and was discontinued on the purchase of this interest by Pardee in another proceeding. The notes were never returned by Pardee to the usual custody of the firm of C. Pardee & Co. They were never paid to the bank, so far as appears from the books, nor is there any entry in the books of the firm showing that the bank had parted with their possession, nor any trace that the debt represented by them had been in any way satisfied or discharged.

One Eensselaer E. Dodge, a witness for the plaintiff, testified that about two weeks before Pardee’s death the latter exhibited certain notes to the witness which, from the description, the jury might infer were the notes in question, and that they were then uncanceled.

The plaintiff Clift testified, in substance, that after the death of Pardee the defendant Moses had the key to the private safe of Pardee, and opened it on one or more occasions in his presence, before the appointment of an administrator of Pardee’s estate, which was not made until four months after his death. The plaintiff Clift, the partner of Pardee in the banking business, was a farmer, residing in the county of Cayuga, and took no part in the management of the bank and had very little knowledge of the bank transactions.

Both the bank and Pardee, individually, were insolvent at the time of his death, and the proof tends to show that Pardee had been insolvent for several years, and that this was known to the defendant Moses. Clift was individually solvent. Dodge, the co-maker with Moses of the notes, had failed. There is no proof as to the pecuniary ability of Moses.

The answer of Moses sets up the defense of payment, and the fact that Moses had possession of the notes after Pardee’s death was proved by his own witnesses.

We think the plaintiff so far explained and accounted for the non-production of the notes as to put the defendant on his defense (see Grey v. Grey, 47 N. Y., 554), and the motion for nonsuit on the ground that the plaintiff had not made a case for the jury was properly overruled. The other exceptions relate to rulings upon evidence and to the charge.

The defendant, Moses, was called as a witness in his own behalf. His counsel propounded to him a series of interrogatories touching the possession of the notes prior to Pardee’s death. These questions were objected to by the plaintiff’s counsel, and excluded by the court, under section 829 of the Code. A brief statement of the situation when these questions were asked and the rulings excepted to made, will be useful in understanding the point presented. When the plaintiff rested, the defendant called as his first witness, his wife, Mrs. Moses, and her testimony developed the facts upon which the defendant relied to sustain the defense of payment. The evidence of Mrs. Moses in short was, that in the fall of 1875, on the return of Mr. Pardee from Wisconsin, her father (Mr. Pardee) informed her that he had about come to an arrangement with her husband, to give him the Dodge and Moses notes in exchange for his interest in the dredge property, and that “ when he sold the dredges, if he made anything, he would divide with Mr. /Moses; ” that shortly afterwards Mr. Pardee brought the notes one evening to the house, and in her presence handed them to Mr. Moses, and told him to take good care of them as he might need them when he came to make a settlement with the Dodges, and that her husband handed the notes to her and she put them away, and she testified substantially that she retained them in her possession until she destroyed them in 1879, after Mr. Pardee’s death, except that she testified that on one occasion Mr. Pardee borrowed them to use in a litigation with one of the Dodges. The theory of the defense, therefore, as developed by the testimony of Mrs. Moses, was, that the notes were paid by the transfer by Moses to Pardee, of his interest in the dredge property, and that they were delivered up to him by Pardee in consideration of such transfer. The defendant, Moses, was called as a witness in his own behalf immediately after the conclusion of his wife’s testimony. He was first interrogated directly as to transactions between himself and Mr. Pardee, and the questions were excluded, and the correctness of those rulings is not now assailed. These were followed by a series of questions put in a great variety of forms, of which the following are samples; “Have you ever had the notes in suit in your possession?” “ Did you see the notes in suit in November or December, 1875?” “Did you ever see the notes in the possession of your wife when Mr. Pardee was not present, or in your wife’s hands when Mr. Pardee was not present?”

The questions were objected to as inadmissible under section 829 of the Code, and were excluded, and we think properly. The plaintiff was the survivor of a deceased person within section 829. Green v. Edick (56 N. Y., 613). The defendant, Moses, could not, therefore, be examined as a ’witness in his own behalf or interest, “ concerning a personal transaction or communication ” between himself and Pardee, unless the plaintiff had been examined in his own interest “ concerning the same transaction or communication.” Section 829.

Tlie primary question is, whether the evidence sought to be elicited by the questions put to Moses touching the possession of the notes prior to Pardee’s death, was evidence concerning a personal transaction between the witness and Pardee. The evidence was very material upon the issue of payment. If the notes were in the possession of Moses prior to Pardee’s death, the presumption of payment would he very strong, and if he saw them in the possession of his wife in 1875 or 1876, or subsequently during Pardee’s lifetime, it would be a strong circumstance in corroboration of her testimony. The questions do not on their face call for a disclosure of a personal transaction of the witness with Pardee; and if it be the true construction of section 829 that a party may be a witness against the representative of a deceased party as to any fact which is not a narrative of an occurrence between the witness and the deceased, or if any fact may be proved by the survivor which does not involve on its face a direct statement of a transaction or communication between himself and the deceased, then the evidence of Moses was improperly excluded.

But this literal construction of the section has not been adopted by the courts. It has been held with general uniformity that the section prohibits not only direct testimony of the survivor that a personal transaction did, or did not take place, and what did, or did not, occur between the parties, but also every attempt by indirection to prove the ¡same thing, as by negativing the doing of a particular thing by any other person than the deceased, or by disconnecting a particular fact from its surroundings and testifying to_ what on its face may seem an independent fact, when in truth it had its origin in or directly resulted from a personal transaction. It may be too broad to say that where the ultimate fact cannot be proved under this section by a witness, he cannot testify to any of a series of facts from which the ultimate fact may be inferred; but if there is introduced into this statement the qualification-that he cannot testify as to any of the subsidiary facts, which originated in a personal transaction with the deceased, or which proceeded from such transaction as a cause, the statement so qualified may be substantially correct.

Reference to a few of the decided cases will illustrate the general rule of construction to which we have adverted. In Grey v. Grey (supra) the action was by an administrator on a note made by the son of the intestate, the defendant in the action. The note was in possession of the son, who claimed that it has been delivered to him by his father before his death, and he was permitted to prove this by his own testimony under objection, and also to testify that he received it from no one else. The court held that the objection was well taken, Peckham, J., saying : “The witness was incompetent to testify that he received it from his father. If he could not testify to that directly, he was equally incompetent to prove it indirectly, by stating in substance that he received it from no one else.”

In Koehler v. Adler (91 N. Y., 657) the question was whether, a check given by the plaintiff to the defendant’s, intestate was a personal transaction between them, or a transaction in which the plaintiff acted for the Stonewall Oil Company. The plaintiff offered himself as a witness-on the trial, and was asked by his counsel whether the-check had anything to do with the affairs of the oil company. The question was objected to under section 829,, and excluded. This court sustained the ruling on the-ground that it was an indirect attempt to show that the-check was a personal transaction between the plaintiff and the intestate. Lerche v. Brasher (104 N. Y., 157; 4 N. Y. State Rep., 335) was an action to recover for services rendered by the plaintiff for the defendant’s intestate. The-court held that the plaintiff was competent to testify to certain acts which did not in themselves create any inference of a personal transaction with the deceased, but said, <c If the 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.’” Many cases will be found in the supreme court proceeding upon the same construction, viz.: that the statute covers-indirect as well as direct evidence of personal transactions- or communications.

The possession by the defendant, or by bis wife, of the? notes prior to the death of Pardee, was a material fact on the main issue of the case. Possession of a thing derived from another is, of course, a personal transaction with the person from whom the possession was derived. Proof by Moses that he had possession of the notes prior to Pardee’s death, did not of itself necessarily show a possession derived from Pardee. In the absence of explanation, this possession may have been derived from Clift or from some third person to whom the notes had been transferred by Pardee & Co. But before Moses was called as a witness,, he had proved by his wife that his possession came from Pardee through a direct personal transaction between Pardee and himself. To permit Moses to testify to his possession of the notes prior to Pardee’s death, or that he saw them in his wife’s hands, was equivalent under the circumstances to permitting him to testify that he received, the notes from Pardee, and as he could not be permitted to-testify directly to that fact, he was equally incompetent to-testify to a possession which was the inseparable incident, and result of a personal transaction. The statute cannot be evaded by framing a question which on its face relates; to an independent fact, when it is disclosed by other evidence that the fact had its origin in, and directly resulted from a personal transaction. .

But the statute permits the survivor to testify to a personal transaction or communication with a deceased person, when the party bringing the action as his representative or survivor, is examined in his own behalf, concerning the same transaction or communication, and it is claimed that the testimony of Clift, to the effect that after Pardee’s death, the defendant Moses, had access to his safe and papers, and on one or more occasions opened the safe, prior to the appointment of an. administrator, opened the door to the proof offered. This view is not tenable. The testimony of Clift did not relate to any personal transaction with Pardee. The facts testified to by him related to facts and conditions existing after the death of Pardee. The fact that Moses had access to the safe after Pardee’s death, joined with the facts proved by the other witnesses for the plaintiff, were together, as was claimed by the plaintiff, sufficient to justify an inference that the notes were in the safe at the death of Pardee, and were taken therefrom by the defendant. The defendant Moses, was permitted to testify that he did not take the notes from the safe, and to he examined fully on that point. But he could not be permitted to testify that he had possession of the notes from Pardee before his death, or, in other words, to prove a personal transaction with him, to rebut a possible inference arising from all the facts going to make up the plaintiff’s case, that the notes were outstanding and unpaid at Pardee’s death, and were then in his safe. The evidence was not admissible, on the ground that the plaintiff had opened the way to such evidence, because the plaintiff’s evidence did not relate to any personal transaction at all. It was not admissible in contradiction of the plaintiff’s evidence, because the substantial and material part of the plaintiff’s testimony, viz.: that Moses had the key of the safe after Pardee’s death, and opened the safe before the appointment of an administrator, was admitted by Moses, although there is some discrepancy as to details' And finally, the evidence of Clift, did not even inferentially show a personal transaction with Pardee. Of itself, independently of the other facts proved, the possession of the key of the safe by Moses, by which he could and did obtain access to it, had no significance. It was only from its association with other facts that it had any importance. Because there arises from a group of independent and separable facts an infer-' -ence that a personal transaction did or did not take place between the survivor and the deceased, this is no reason for permitting the survivor to rebut such inference by his testimony, that he had or had not a personal transaction with the deceased, which was inconsistent with such inference.

The appellant’s counsel relies on the cases of Pinney v. Orth (88 N. Y., 451), and Lewis v. Merritt (98 id., 209). Both of these cases involved the question how far it is permissible to a survivor of two persons to testify to facts which may inferentially disclose the -existence or non-existence of a personal transaction with the deceased, where the evidence is offered not to establish affirmatively a cause of action or a defense, but merely and only to contradict some facts testified to by a witness on the other side.

It was held in Pinney v. Orth that the prohibition of section 829 “ did not preclude the survivor from testifying to extraneous facts and circumstances which tend to show that a witness who has' testified affirmatively to such (per-sonal) transaction or communication, has testified falsely,” and consequently that the survivor might testify that a witness on the other side was never present at any interview between the survivor and the deceased person, as he-had testified, thereby inferentially negativing the existence of any conversation such as was related by that witness. But the court confined the range of permissible contradiction within narrow limits, and expressly held that it could not be extended to include testimony by the survivor, of what was or was not said between the parties at a conversation sworn to by a witness on the other side, although the evidence was offered to contradict his narration of the transaction.

The decision in Lewis v. Merritt was cased on Pinney v. Orth. The executor who brought the action in that case testified as a witness in his own behalf that certain notes; were seen by him in a box in the room of the intestate the morning before her death, and were not in the box immediately thereafter; that the defendant was in the room where the notes were kept during the day preceding the intestate’s death, and had the opportunity to take the notes .from the box without authority.

. The trial court refused to permit the defendant to answer the question, “ whether you took the notes from any trunk or any person,” and also to show by his own testimony that at the time of a conversation two days before the intestate’s death in her presence “he had possession of the notes.” It was held that this evidence should have been admitted in contradiction of the facts testifed to by the executor. It was plainly competent for the defendant to-testify that he did not take the notes from the box, and thereby rebut the inference that he wrongfully abstracted them therefrom, sought to be raised by the testimony of the executor. The testimony as to the prior possession is much nearer the border line; but the court considered it. admissible.

It tended directly to contradict the affirmative testimony of the executor that he saw, the notes in the trunk the day-before the intestate’s death. The testimony might furnish an inference on the main issue, viz.: Whether the intestate gave the notes to the defendant, but, as stated in the opinion, it was not offered for the purpose of establishing an. affirmative defense. These cases do not justify the evidence offered in the case now before us.

The plaintiff Clift had opened no personal transaction by his testimony. The facts sworn to by him were substantially admitted. The proof offered bore upon the very issue in the case, and was, we think, though not in form, an offer to prove possession derived through a personal transaction with Pardee, hi or was the evidence admissible-to contradict the evidence of Rensselaer R. Dodge. It was. not offered for this purpose. There was no suggestion that the defendant intended or sought to prove a possession in him or his wife at the time testified to by Dodge, and Dodge’s testimony that at some time after the alleged surrender of the notes to Moses, he saw them in Pardee’s possession, is confirmed by the testimony of Mrs. Moses, that after that time Pardee borrowed them to use in a litigation with Dodge. The question, “ At the time of the sale to Williams and Upham in 1877, did you own any interest in these dredges ? ” was also properly excluded as an attempt, indirectly to prove a personal transaction between himself and Pardee, as it had already been shown by Mrs. Moses that her husband transferred his interest in the. dredges to Pardee in 1875, in satisfaction of the notes.

The to permitting the plaintiff on the re-examination of Rensselaer R. Dodge to ask the question, “At the time Mr. Pardee showed you these notes in 1878, what did he say about them ? ” was not, we think well taken. The defendant in his cross-examination of this witness, proved by him c.ertain declarations of Pardee, made on the occasion of Pardee’s exhibiting the notes to him, and negatively, that Pardee did not say whether they had been can-celled or not, and that Pardee did not tell the witness what the notes were. This examination was evidently directed to, the point of identity between the notes exhibited to Pardeeat that time and the notes in suit. It was competent for the plaintiff on the re-éxamination of his witness to show-the whole conversation, a part of which had been called out by the defendant, bearing upon the question of identity, and this was the fair construction and scope of the inquiry* If the answer went beyond this, the remedy of the defendant was by motion to strike out the irrelevant portion of the answer, which was not made.

The court was requested by the defendant’s counsel to charge “ that if the defendant Moses transferred his interest in the dredging property, and it was accepted in satisfaction of the notes in suit, such transfer operates as a payment of the notes, and. the plaintiff can not recover. The -court replied, “I so charge, adding to it, however, the modification that I gave you before in relation to any intended fraud or any fraud against the co-partnership creditors, based upon the knowledge that the property transferred was grossly inadequate compared with the amount of the -debts satisfied, and having knowledge of the fact that Charles Pardee was at the time insolvent, or (and), if he was not insolvent, then any settlement that was made, no matter how inadequate the consideration was, the consideration would stand.”

The defendant’s counsel excepted to the refusal to charge in the language requested and to the modification. We 'think the charge was quite as favorable as the defendant was entitled to. The whole evidence shows that the alleged transaction between Pardee and Moses, upon which the defendant relied, was a sale by Moses to Pardee, individually, ■of the farmer’s interest in the dredge property, and a surrender by Pardee to Moses of the Dodge and Moses’ notes, the property of the firm of 0. Pardee & Co., in payment for the interest of Moses in the dredge propérty so transferred to Pardee. In other words, it was a transfer by one partner of firm property in payment for property purchased by him individually for his own use, and not for the use of the firm, without the consent of his co-partner, and in fraud of the partnership, the acting partner being at the time insolvent, and the debtor of the firm with whom the transaction was had knowing of the insolvency, and also that the acting partner in taking title to the dredge property was dealing for himself and not for the firm.

The transaction was beyond the scope of Pardee’s powers -as partner in the firm of C. Pardee & Co., and the transaction did not as to the firm operate as a payment of the notes. There was neither prior authority nor subsequent ratification. In 1877, Moses, as agent for Pardee, under a power of attorney from Pardee individually, sold the whole dredge property for $3,000, and the proceeds went to Pardee, and not to the firm. The notes surrendered amounted, in 1875, to about $15,000, and Moses did not own to exceed a one-half interest in the dredges at the time of the alleged transfer to Pardee in that year. '

That this transaction by which Pardee assumed to surrender the notes of the firm in payment for property purchased by him individually, to the knowledge of Moses, was beyond the scope of Pardee’s agency for the firm and was not binding on the firm, and that the plaintiff, as survivor of the firm, may maintain an action on the notes, is ;a conclusion justified by the authorities. Dob v. Halsey, 16 Johns., 38; Evernghim v. Ensworth, 7 Wend., 326:. Gram v. Cadwell, 5 Cow., 489; see also Rogers v. Batchelor, 12 Pet., 221; Purdy v. Powers, 6 Barr., 492; Williams v. Brimhall, 13 Gray, 462.

The case of Sweet v. Morrison (103 N. Y., 235; 2 N. Y., State Rep., 781) was a case of the adjustment and settle ment by one partner of a partnership account with another firm, and it was held that although there may have been collusion between the adjusting partner and the debtors, the adjustment was within the general power of either partner and was binding on the firm.

That case is quite different from the present one in circumstances and the principles governing it.

We find no error in the record, and the judgment should therefore be affirmed.

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