
    Jacob A. Mittnacht, as Administrator with the Will Annexed, etc., of Frances A. Croft, Deceased, Respondent, v. Jules S. Bache and Others, Appellants.
    
      Checks drmon on an account in the drawer’s name as," executor”—-.not evidence that the money belonged to a particular estate — nor is an affidavit on informational belief. ,
    Where the executor of an estate makes investments in stocks through the agency of a firm of brokers, to which he gives checks signed by himself, as “ executor,” drawn upon a bank account standing in his name as “ executor,” but explains, that the account was opened by him in that form in order to evade creditors, and denies that he is actually executor for any one, it is incumbent upon the plaintiff, in- an action subsequently brought on behalf of an estate of which he-was executor to recover from, the brokers the money thus received by them, to show that the money represented by the hank account upon which the checks were drawn actually belonged to that estate-.
    The existence of such bank account in his name as “executor” creates no presumption that the moneys in question belonged to the estate, nor is evidence of that fact supplied by the affidavit of one of the brokers .previously taken in connection with some complaint made by his firm against the executor, in which the affiant stated that he “ understood ” certain moneys demanded by the executor belonged to the estate of the latter’s wife, and “in support of such belief” further■ stated that he had been served with a demand, signed, as he. was informed and believed, in the handwriting of the husband, in which the latter, as executor, demanded from the- brokers the return of the sum. sought tobe recovered, and substantially alleged that he embezzled the moneys, and that they belonged to the estate of his wife when he paid them to the brokers for the credit of his account.
    Suc-h an affidavit is not an admission of the alleged fact at all, hut merely a statement of the understanding of the affiant, who had no ijersonal knowledge on the subject, and did not.pretend to have any.
    
      Semble, that an admission contained in pleadings between other parties simply founded upon information and belief, where there is no presumption that the facts alleged or denied must have been within the knowledge of the party mateing the allegation or denial; and where the allegation or denial is not against the interest of the party making the same, should not be received in evidence as establishing any fact.
    Appeal by' the defendants, Jules S. Bache and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 22d day of May, 1896, upon the verdict of a jury rendered by direction of the court, as said judgment was amended by an order entered in said clerk’s office on the 8th day of June, 1896, and also from an order entered in said clerk’s office on the 25th day of May, 1896, denying the defendants’ motion for a new trial made upon the minutes.
    
      Harold Hatkan, for the appellants.
    
      Edward W. S. Johnston, for the respondent.
   Williams, J.:

The action was brought by William F. Croft, as executor and trustee of his deceased wife’s estate, to recover moneys of the estate, had and received by the defendants in 1894. The defendants were-stockbrokers, having their principal place of business in Hew York city, and a branch office in Saratoga, Hew York, the latter in charge of one Rosenheim, as manager. In July, 1894, William F. Croft went into the defendants’ Saratoga office and had a talk with the manager about general stock business and matters. He gave an order for the purchase of some stock, which was sent to Hew York, and was executed by defendants. The stock was purchased. The purchase was reported to Mr. Croft by the manager, and Mr. Croft gave the manager a check for margins against his account. This check was dated July 27, 1894, was drawn upon the Mount Morris Bank of Hew York city, to the order of defendants, for $1,000, and was signed Win. F. Croft, Executor. The manager asked Mr. Croft how it was that he signed the check as executor. Mr. Croft said that he had failed ini business, that he had some trouble with his creditors, and that he had opened an account in thebanlcin that way to protect the account against an attachment by his creditors / that he was not executor of any estate. The manager communicated with the defendants’ Hew York office about this check, and asked whether he should, accept it. One of the defendants thereupon communicated with the Mt. Morris Bank by telephone, and asked the cashier whether the check was good. The cashier, replied that it was. Defendant asked the cashier wfio Mr. Croft was' executor for. The cashier replied that he did not know that he was execwtor for any one y that there was no record of it'at the hank. The defendants procured their attorney, a little later, to look in the Hew York surrogate’s office to ascertain .for whom, if any one, Mr.. Croft was executor, but nothing was found in that office. In fact, a will, under which he was executor, 'had been proved in Westchester county, and was recorded' in the surrogate’s office in that county. The account of Mr. Croft with defendants was continued through August and into September, 1894.

There was considerable dealing in stocks by him through defendants, as brokers, and besides the check already described he gave them other checks in the same form as the first: One dated July 31, 1894, for $l¡,000j another dated August 21, 1894, for $1,000, and a third dated August 28, 1894, for $1,200, making in all $4,200, and thesé checks were all paid and the money came into the hands of defendants.

The business was .disastrous, and all this money put up by Mr. Croft against margins was lost, and he became further indebted to defendants in the sum of $2,000, for'which a note made by a third party and indorsed by Mr. Croft was given, but was uncollectible.

•Mr. Croft was living at the time of the trial,, but was not present or sworn, and the evidence as to transactions with the manager of defendants as given by the latter was not in any way contradicted at the .trial. Mr. Croft has subsequently died, and the present plaintiff has been substituted. The will above referred to as proved and recorded in Westchester county, and under which Mr. Croft was executor, was made by his wife, and gave all the property of the testatrix, after the payments of debts and testamentary charges, to the executor, in trust, the income therefrom to .be used for the benefit of her son during his life, then for the benefit of the executor during his life, and remainder to issue of the son absolutely.; and if the son died after the executor leaving no issue, or if both the son and the executor died before the testatrix’s death, the principal was given to John McQuade, in trust, the income for the use of William Croft, the father-in-law of the testatrix, during life, and at his death the principal to he divided between the next of kin of the executor. The executor was given power to mortgage, lease, sell and convey the real estate, etc. The will was admitted to probate and Mr. Croft received letters testamentary. It was conceded for the purposes of the decision of the court that the defendants were holders for full value of all this money sued for. They offered to prove this, and thereupon the concession was made.

The first question raised by the appellants is that there was no proof in the case that the money paid upon the checks to the defendants was money belonging to Mrs. Croft’s estate. This question was raised by the pleadings, and again at the trial by motion to dismiss, which was denied, and an exception was taken by the defendants.

No presumption could be indulged that the money in the bank against which the checks were drawn was the money of his wife’s estate by reason of the account at the bank being in Mr. Croft’s name as “ executor.” For all that appeared from the form of the account, Mr. Croft may have been executor of, and the money may have belonged to, some Other estate. No proof was given that he did not occupy this relation to some other estate as well as to his wife’s estate. The only evidence given in the case to establish the fact that this money belonged to his wife’s estate was the affidavit of one of the defendants," verified November 7, 1894, just after this action was commenced, and long before the trial, which took place May 20, 1896. This affidavit was produced from the district attorney’s office in New York. It was claimed that it had been made in connection with some complaint made by the defendants against Mr. Croft. There was no proof as to the circumstances under which it was. made, or the purpose of making it, and the affidavit is not set out in full in the record. Only extracts from it were read and are in the record. In that affidavit the defendant stated, among other things, I understand now that said sum of .$4,200 did not belong to said William F. Croft, but was money belonging to the estate of his deceased wife, Frances A. Croft, and was in his possession as executor of said estate, and that it was part of a fund left to said William F. Croft in trust for the benefit of the son of the said testatrix, and ■in support of such belief I refer to the demand made by said Croft upon our firm, a copy whereof is hereto annexed, and to the certifled copy of the will of said Frances A. Croft, herewith presented. * * * Some, time last October I was served with a demand, a copy of which is hereto annexed, the original being signed, as I am informed and believe, in said Croft’s handwriting, in which Mr. Croft as executor demanded from our firm the return of said sum of $4,200, substantially alleging that he embezzled the said moneys, and that they belonged to the estate of Frances A. Croft, deceased, when he paid them to us for the credit of his account.”

We do not think this affidavit furnished any evidence whatever that the money received by the defendants from Mr. Croft belonged to the estate of Mrs. 'Croft, whose representative brings this action. The claim made by the plaintiff is that this affidavit amounted to an admission by the defendant who made the affidavit of the fact that the moneys belonged to the estate of the deceased wife of Mr. Croft. We think that this claim cannot be sustained. The affidavit was not an admission of thefaet at all. It was merely a statement of the deponent’s understanding, based upon the demand made by Mr. Croft upon the defendants just prior' thereto, wherein he stated that the money belonged to the estate of his deceased wife. It is quite .apparent that the defendant who made the affidavit had no personal knowledge on the subject, and did not pretend to have. The defendants had received this money from Croft in July and August, 1894, Croft assuring them that the moneys belonged to him ; "that he was not the executor of any estate, and that the form in which the account was kept was fictitious. He told these falsehoods to induce the defendants to accept the checks with the word “ executor ” annexed to his signature thereto. Then, in October, 1894, he demanded a return of the money to himself as executor of his wife’s estate, stating that the money belonged to such estate, and that he had embezzled it when he gave it to the defendants. Thereupon defendant made this affidavit, saying that he then understood the money belonged to the estate of Mr. Croft’s deceased wife, leeaúse Mr. Croft so stated in his demand, made just before. Certainly, here was nothing that could be regarded as evidence to prove the foot alleged, which, being denied, the plaintiff was bound to prove.

In The Mayor v. Fay (53 Hun, 553) it became necessary for the plaintiff to prove a copartnership between R. & II. The only evidence given upon this subject was a portion of an answer made by the defendant in another action brought against her by R, in which she alleged, on information cmd belief, that R. & K. were partners. The court held that such evidence was no proof of the fact of copartnership. In the opinion, Mr. Presiding Justice Yah Bbuht, among other things, said: “ It is true that admissions in pleadings in an action between other and different parties have been received in evidence by the courts. The ground upon- which these admissions have been received has been because they were admissions against the interest of the party malting them, and because of the great probability that a party would not admit or state anything against himself or against his own interest unless it was true. And, furthermore, these admissions have been confined to those cases where the admissions contained the assertion of facts which, from the nature of the case, if true, must have been within the knowledge of the party making the admission, and the pleading is verified by him. These rules are laid down in the case of Cook v. Barr (44 N. Y. 157), and their application is apparent. .Therefore, an admission contained in pleadings between other parties simply founded upon information cmd belief \ where there is no presumption that the facts alleged or denied must lime been within the knowledge of the fccrtij making the allegation or denial, and, where the allegation or denial is not against the interest of the party making the same, cannot be received in evidence as establishing any fact.”

The evidence here is within the principle laid down in the cases cited, and was entirely inadequate to prove the fact that the money sought to be recovered belonged to the plaintiff’s estate.

The order directing a verdict was, therefore, erroneous, and the judgment entered thereon must be reversed. The conclusion arrived at with reference to this question renders it unnecessary to consider the other questions raised in the case.

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

Yah Bbuht, P. J., and Pakkeb, J., concurred; JRumsey and Pattebsoh, JJ., dissented.

Judgment reversed, new tidal ordered, costs to appellant to abide event.  