
    Edward Cooper and Others, Respondents, v. The Hills Brothers Company, Appellant, Impleaded with Robert M. Webb.
    
      Letters written by a judgment debtor after a transfer of his property — they are not competent as against the plaintiff in a creditor’s suit — if used to impeach the testimony of the debtor they should be called to his attention — the exclusion of evidence on a wrong ground does not require a reversal.
    
    In an action by judgment creditors to set aside a transfer of property made by the judgment debtor, declarations contained in letters written by the judgment debtor long after the transfer are not competent against the plaintiffs, nor are they competent to impeach the deposition of the judgment debtor, taken under a commission and read by the plaintiffs upon the trial, where the judgment debtor’s attention was not called to such declarations upon his examination under the commission.
    A court will not reverse a judgment, because of the exclusion of evidence upon the wrong ground, if the .exclusion was proper for any reason.
    Appeal by the defendant, The Hills Brothers Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 16th day of May, 1899, upon the decision of the court rendered after a trial at the New York Special Term.
    
      C. N. Bovee, Jr., for the appellant.
    
      H. B. Closson, for the respondents.
   Ingraham, J.:

The plaintiffs brought this action as judgment creditors of the defendant Webb, to set aside a transfer of property by him to the appellant, Hills Brothers Company. The defendant Webb was examined under a commission and his deposition was read by the plaintiffs. He testified that on February 10, 1894, he executed a bill of sale whereby he sold to the appellant all the chattels, merchandise, fixtures and machinery contained in his factory at Rock-ville Center, L. I., which bill of sale was annexed to the commission and introduced in evidence. That bill of sale was for the consideration of one dollar and other good and valuable consideration, and assigned and transferred to the appellant the property mentioned, which the witness testified was reasonably worth the sum of $15,000. At the time of this transfer Webb was indebted to the plaintiffs in the amount of about $2,800 for goods bought of them for use in his business, and lie was also indebted in an amount of over $20,000 to the appellant and others.

In February, 1897, Webb was sick and advised to go to Texas. Shortly before he left he sent a message for Hr. William Hills asking to see him. In answer to that message Hr. William Hills, Jr., came, and Webb then told him that owing to his health he would be compelled to leave Hew York at once; that he expected to go to Texas and expected to return in the fall, and that he (Webb) wished to make some arrangements with Hr. Hills, Sr., as to what was best to do with his business while he was away, and he asked if Hr. Hills, Sr., had any suggestion to make. .He further told Hr. Hills, Jr., there was no special difficulty in leaving -his business at that time other than the fact that there were other creditors, and that as Hr. William Hills, Sr., was most deeply interested, the witness desired to consult with him before taking any radical step. Hr. Hills was also told that among his other creditors were the plaintiffs and Rolle Brothers. Hr. William Hills, Jr., said he would consult with William Hills, Sr., and see what could be done. Two or three days after Hr. William Hills, Jr., again called on Webb aud suggested that he (Webb) should turn over all his assets to the Hill Brothers Company. He stated that he had seen his lawyers, and that any agreement that the parties made would be satisfactory to his father. He proposed that I make over all my assets to The Ilills Bros. Co., to be held by them in trust until I should return, and he said he would send a lawyer to my home to make the legal transfer; * * * that by making this bill of sale to The Hills Brothers Company my property could be held in trust by them for me during my absence, and that on my return my business could be, and would be, returned to me intact by them, and that during my absence my business would be continued. He asked me to make over all my property and assets to The Hills Brothers Company. He told me that they would hold it in trust for me during my absence, and that upon my return they would return it to me. He told me that the purpose for which they would do this was to prevent any single -creditor from attaching and selling my property to the detriment of the others. I told him I expected to be absent from four to six months. I made no objection to turning over the machinery and merchandise to The Hills Brothers Company, and their promise to return my property was not made in answer to any objection as to the machinery and merchandise. All the objection I made was to turning over the book account and the cash on hand. He said his-lawyer would come either that night or the next night to my house with the legal papers.” Either that night or the night following the lawyer came with the transfer in question. Webb made-a statement to the lawyer that these goods were to be returned to him when he returned in the fall, at which the lawyer smiled and made answer that he knew this; that he understood it to be but a friendly deal. The witness further testified that while in Texas he endeavored to borrow $2,000 from Hills for the object of remaining in Texas and going in business there, which was refused, and he then returned to New York in September, 1897. He saw Mr. John Hills, one of the • officers of the appellant company. He told Webb that they had disposed of the machinery. Webb made another effort- to obtain the loaii of $2,000, which seems to have been unsuccessful, when he returned to Texas. He further testified t-liat he wrote a letter from Texas asking them to loan him the money before he came home and received a reply that the Hills did not care to loan it to him. Webb’s testimony was corroborated by that of his-wife, taken under the same commission.

The defendant introduced evidence tending to contradict this testimony of Webb, and offered in evidence a letter written by Webb dated August 26,1897, a letter written by Webb of June 8,1897, and three other letters from Webb written between June, 1896, and June, 1897. The letter of August 26,1897, was objected to by the plaintiffs upon the ground that it was incompetent, irrelevant and immaterial ; that it was offered as a declaration made by Mr. Webb, and as against the plaintiffs any declaration made after their rights had accrued cannot be competent. The court sustained the objection and the defendant excepted. There was no claim that the letter was introduced to impeach Webb as a witness, and on the cross-examination of Webb the letter was not submitted to him and he was not interrogated about it. It is now claimed that this letter was competent, as tending to contradict Webb’s statement of the contract or arrangement made at the time the bill of sale by which Webb’s property was transferred to the appellant was made; but the letter was not competent as against the plaintiffs unless Webb’s attention had been called to the statements made in the letter which it was claimed tended to contradict him. As before stated, Webb was not examined as a witness in court, and before his declarations, made long after the transfer to the defendants, could be admissible for purposes of contradiction, it was necessary that the witness’ attention should have been called to the declaration sought to be introduced in evidence. The objection was expressly taken that this letter was offered as a declaration made by Webb and as against the plaintiffs and that such declarations were not competent. That this was the ground upon which the letter was offered in evidence was not disputed by the appellant; nor did the appellant offer the letter for any other purpose. The appellant must be considered as acquiescing in the statement of counsel for the plaintiffs as to the object for which the testimony was offered, and as it was clearly incompetent for that purpose, it was not error to sustain the objection. It is true the plaintiffs did not take the specific objection that Webb’s attention had not been called to the latter upon his examination, but as the letter was not offered for the purpose of contradicting Webb’s testimony or discrediting Webb as a witness, it was not necessary for the plaintiffs to take that specific objection. But however that is, the court would not reverse the judgment upon the ground that the proper objection had not been taken to evidence offered and excluded when for any reason the evidence was incompetent and it was properly excluded. The letter of June 8, 1897, was clearly incompetent for the same reason. Nor do we think that the letters did in fact contradict Wehh’s testimony. In them Webb says that he gave the appellant everything lié had ; that this was true was not disputed. The conditions upon which the transfer was made were questions in dispute, and neither of the letters tend to discredit Webb’s testimony upon those questions. The other letters which were excluded were written long before the transaction and do not seem to have any relevancy to the point at issue.

As these were the only objections to the judgment it does not seem that any error was committed and the judgment should be affirmed, with costs.

Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

Judgment affirmed, with costs.  