
    ANN HODNETT, Plaintiff and Respondent, v. MacPHERSON SMITH et al., Defendants and Appellants.
    
      [Decided April 30, 1870.]
    The change in the law, which allows parties to be witnesses, has not changed the rule that the execution of an instrument under seal must be proven by the subscribing witness.
    Consequently, where the attendance of the subscribing witness cannot be had, proof of due diligence, such as would govern a prudent man in a sincere search for the witness, is still necessary.
    If such proof be satisfactory, the signature of the witness may be proven; and when it appears that this cannot be done, and not before, proof may be given of the handwriting of the party who executed the instrument.
    Before Monell, McCunn, and Freedman, JJ.
    This case was tried before Hr. Justice Jones and a jury.
    Appeal from a judgment entered in favor of the plaintiff upon the verdict of a jury, and from an order made at Special Term denying defendant’s motion for a new trial upon a case.
    The complaint alleged a conversion by defendants of plaintiff’s property, consisting of the contents of a liquor store.
    The defendants, by their answer, justified, under executions issued against John Hodnett, plaintiff’s husband, and claimed that the property levied upon and taken was, at the time of such levy,, the property of said John Hodnett, or that said John Hodnett had an interest therein liable to levy and sale under execution.
    Hpon the trial it appeared that John Hodnett had hired the whole house, including the liquor store, and conducted the liquor business at said store up to within about five weeks prior to the-levy; that he had executed a chattel mortgage upon the contents of the liquor store to William Harney, which was foreclosed that upon the sale under said mortgage the property was knocked down to William Hoofing, who agreed with Mr. Ryan, plaintiff’s brother, to convey it to the plaintiff; that Rvanadvanced the necessary funds for that purpose, and that William Dooling, within a few days after his purchase and shortly before the levy, did convey the said property to plaintiff for an alleged consideration, which yielded him a profit of ten dollars for his trouble. The main point involved in the case, as the court charged, was, whether the various transactions were a mere device by which the wife should be put forward as being the ostensible, whereas, in fact, the husband still remained the real owner, or whether it was a bona fide transaction, whereby the title to this property became vested in the wife absolutely, as her own property.
    To substantiate her claim plaintiff offered in evidence a bill of sale of said property, executed by William Dooling to her under seal, and which purported to have been sealed and delivered in the .presence of one J. C. Wadsworth as subscribing witness. The evidence showed said Wadsworth to be an attorney-at-law, who, at said time, had his office in Duane street, in the city of Hew York. William Dooling proved his own signature, and testified that he did not know where J. C. Wadsworth was. Counsel for plaintiff then called as a witness Florence Leary, who, upon this point, testified as follows:
    
      “ I know Hr. Wadsworth. I believe he is out in Omaha. He is subscribing witness to the bill of sale.”
    Q. By the Court: How do you know he is in Omaha?
    A. I heard he had left and went there.
    Q. Who did you hear it from ?
    A. A bookseller he used to deal with told me, and I heard it from a friend of his, Hr. Benedict, in his office, who told me he had gone out there.
    Counsel for defendants objected on the grounds that the paper was not proved—that the subscribing witness should prove it — that his absence was not excused.
    The court overruled the objection and admitted the bill of sale, to which ruling defendants’ counsel duly excepted.
    
      
      Mr. Aaron J. Vanderpoel for appellants. .
    The court erred in admitting in evidence the bill of sale from William Pooling to the plaintiff.
    It was not properly proven (Griffin v. Story, 1 E. D. Smith, 153; Jones v. Underwood, 28 Barb., 481; Hallenbeck v. Fleming, 6 Hill, 303; King v. Smith, 21 Barb., 158).
    The change in the law which allows parties to be witnesses, does not alter or dispense with the rule (Jones v. Underwood, 28 Barb., 481; Griffin v. Story, 1 E. D. Smith, 153).
    The absence of the subscribing witness was not accounted for (Van Dyne v. Thayre, 19 Wend., 162; Fry v. Bennett, 1 Abb., 289; 4 Duer, 247; People v. Hadden, 3 Denio, 220).
    The belief of Leary that Wadsworth was at Omaha, was not competent, nor any evidence of his absence.
    And why were not the parties from whom he heard that Wads-worth had gone, called %
    
    When did he go \
    
    Had he not returned %
    
    The statements of the bookseller and Benedict were not evidence (see cases above cited).
    The court erred in admitting in evidence the testimony of William Pooling, as to the value of the property.
    The verdict of the jury is against the weight of the evidence.
    
      Mr. C. A. Henriques for respondent.
    It was in the exercise of a sound discretion that the learned judge, before whom this cause was tried, allowed the plaintiff to recall her witnesses and go into the proof of her case in rebuttal.
    The order of proof is wholly in the discretion of the judge, and his decision thereon cannot be reviewed on appeal (Bedell v. Powell, 13 Barb., 183; Makim v. Anderson, 11 id., 215; Sheldon v. Wood, 2 Bosw., 267).
    Where the plaintiff has rested and the defendant has disproved his case, whether the court will permit the plaintiff to make out a new case réfets in its discretion, and its decision cannot be reviewed (Shephard v. Porter, 4 Hill, 205, note a ; Leland v. Burnett, 5 id., 286).
    If the defendants were entitled to a nonsuit when the plaintiff rested, the defect of proof was cured if she subsequently established her case.
    The court will not disturb a verdict on the ground that the proof was insufficient when the nonsuit was moved for in cases where the deficiency was afterwards supplied (Schenectady and Sar. R. R. Co. v. Thatcher, 11 N. Y., 102-112; Hunt v. Maybee, 7 N. Y., 266-273; Hunt v. Harcourt, 33 Barb., 491-3; Hearsey v. Pruyn, 7 Johns., 179; Colgrove v. N. Y. & H. R. R. Co., 6 Duer, 382; Schwerin v. McKie, 5 Robt., 404).
    If any evidence, on the part of the plaintiff, of the lona Jules of the transaction were offered, the motion for a nonsuit was properly denied.
    Upon a sale to a wife of personal property in the possession of her husband, while they are living together, no manual change or handling is necessary to vest the title in her or to complete the delivery (Allen v. Cowan, 23 N. Y., 507).
    On a motion for a new trial, when there is evidence on both sides, and the jury were not misdirected, on a question of fraud, the court will not set aside their verdict, fraud being a question of fact for the decision of the jury.
    There was no misdirection on the part of the learned judge before whom this cause was tried; but even if there were, the defendants cannot raise an objection to it here, none having been taken at the trial (Cook v. Hill, 3 Sandf., 341).
    The bill of sale was properly admitted; the objection to its reception, that the absence of the subscribing witness was not excused, is not good.
    The witness swears he was told by a Mr. Benedict, in Ms office (the absent witness’ office), that he had gone to Omaha. Answers given to inquiries made at a place where the witness may be expected to be found, may be given in evidence; they are not hearsay (1 Greenleaf on Ev., § 574).
    
      The application of the rule is in the discretion of the judge (id., note; Cook v. Husted, 12 Johns., 188-9, where this identical point is decided).
    Had the objection been taken that no proof of the subscribing witness’ handwriting had been offered, it would have been easily obviated; it cannot now be raised on appeal.
    A party shall not be permitted, on a motion for a new trial, to' avail himself of an objection made on the trial, unless the ground of objection is so particularly stated as to enable the opposite party to supply, if possible, the alleged defect (Merritt v. Seaman, 6 Barb., 330-5, and cases there cited; Fountain v. Pettee, 38 N. Y., 185-6, and cases there cited; Stoddart v. L. I. R. R. Co., 5 Sandf., 180, 191).
    But even if the bill of sale were improperly admitted, there was sufficient evidence alvwnde, of the sale, delivery, and payment introduced without objection, to sustain the verdict (Robertson v. French, 4 East., 137).
    
   By the Court:

Freedman, J.

The bill of sale was an important piece of evidence, and well calculated to exercise a strong influence over the jury. H no sufficient foundation was laid for its introduction, an error was committed by receiving it in evidence. Being an instrument under seal, there can be no question that plaintiff was bound to prove its execution by the subscribing witness, or to show by competent evidence that he could not be produced, or was incapable of being examined (Hollenback v. Fleming, 6 Hill, 303, and authorities therein cited), unless the change in the law, which allows parties to be witnesses, has altered the rule or afforded a reason for dispensing with it. That such is not the case has been distinctly held by the Supreme Court and the Court of Common Pleas (Jones v. Underwood, 28 Barb., 481; Story v. Lovett, 1 E. D. Smith, 153; see also King v. Smith, 21 Barb., 158). I can see no reason why this court should hold otherwise. Proof of due diligence, such as would govern a prudent man in a sincere search for the subscribing witness, is, therefore, still necessary to let in secondary proof (Van Dyne v. Thayre, 19 Wend., 162). Where the failure to produce the subscribing witness has been satisfactorily accounted for, the genuineness of the signature of such witness may be proven; and when it appears that this cannot be done, and not before, proof may be given of the handwriting of the party who executed the instrument (Willson v. Betts, 4 Dea., 201; McPherson v. Rathbone, 11 Wend., 96). In the present case no objection was made upon the ground of the absence of proof as to the genuineness of the signature of the subscribing witness, and consequently it cannot be raised on appeal for the first time. But the objection that the absence of the witness had not been accounted for was distinctly taken. Upon examination of the case I am unable to find any evidence tending to show that plaintiff used due diligence, or any diligence whatever, to procure the attendance of the subscribing witness. In fact, there is no evidence that plaintiff made or caused to be made any effort in this direction. It does not appear that Leary was authorized or requested to look for such witness. He simply swears that he believes the witness went to Omaha, because a bookseller and a friend of the witness had told him so, but does not show that these persons knew or were in position or likely to know the fact. Hor does he specify the time of the receipt of this information. No circumstance is stated from which either the fact or the time of the departure of the witness could be reasonably deduced. For all that appears the witness might have gone and returned at least one year before the trial. This is clearly insufficient.

• The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellants to abide the event.  