
    Sarah M. Tittle, Appellant, v. Alida M. Van Valkenburg and Edward S. Van Valkenburg, as Administrators, etc., of Charles A. Van Valkenburg, Deceased, and Others, Respondents.
    
      Evidence — declarations of a contract vendee, made before an assignment of the contract—they a/re incompetent as against his assignee in an action to'oughtby the latter far its enforcement.
    
    In an action by an assignee of a vendee’s interest in a contract for the sale of land to enforce the specific performance thereof, evidence of declarations made by the plaintiff’s assignor prior to the assignment of the contract, sustaining the defendant’s claim that the contract was not in accordance with the actual agreement of the parties, is incompetent where it appears that the assignee paid a legal and adequate consideration for the assignment and holds the contract in her own right and not as trustee for, or as the representative Of, her assignor.
    
      Appeal by the plaintiff, Sarah M. Tittle, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Herkimer on the 21st day of November, 1901, upon the decision of the court, rendered after a trial at the Herkimer Special Term, dismissing the complaint upon the merits.
    
      Myron G. Bronner, for the appellant.
    ' G. J. Palmer, for the respondents. '
   Hiscock, J.

This action was brought by plaintiff, as assignee of one Daniel J. Tittle, her husband, to enforce specific performance óf a contract for the conveyance o'f certain real estate made by one Charles A. Van Valkenburg as proposed vendor with said Tittle. The contract which gave to said Tittle the right to purchase the real' estate in question was contained in a lease under which he took'possession of and for some time occupied the premises in question. The defense urged to plaintiff’s action was that the written contract did not properly or correctly express the agreement which had been made between the parties for the purchase and sale of said real estate, and defendants by their answer asked to have said written contract so reformed as to correspond with the actual terms which had been agreed upon between the partiés.

Upon the trial, in support of their defense and prayer for reformation of the contract, defendants were allowed by two witnesses to give evidence of alleged declarations made by plaintiff’s assignor before assignment to her of the contract in question, which Sustained the claim that said contract was not in accordance with the actual agreement of the parties. This evidence was very material. In fact, outside of certain features of the agreement between plaintiff’s assignor and defendants’ intestate Van-Valkenburg, which it is claimed bore upon the probabilities of the controversy, it was the only evidence which directly tended to establish defendants’ said defense. It cannot, therefore, reasonably be held that the evidence wás so immaterial that any error in its admission can be overlooked. We have accordingly the question fairly presented whether declarations of an assignor of such a contract while still owning the same may be proved against his assignee to defeat the latter’s rights under the contract. •

We do not think that this can be done.

It is not controverted upon the findings of the court and the evidence that plaintiff acquired a perfect, completed title to the contract for a good and valid consideration. It is indeed found that she paid no money for the transfer, but that the same was made in consideration of a past indebtedness. This, however, as stated, furnished a legal and adequate consideration. Ho claim can successfully be made that she acquired and held the contract in any manner as a trustee for or representative of her assignor, or that her title to the same was other than an absolute, perfected one. Under such circumstances, certainly it would be against the general rule governing the introduction of evidence to permit her rights to be defeated by evidence of alleged disconnected statements made by her assignor before assignment. Such evidence would manifestly be hearsay. While there are various exceptions to the broad rule excluding what might generally be denominated hearsay evidence, none has been called to our attention which in our opinion justifies the evidence here questioned. Upon the other hand, we think that not only principle but a clear weight of authority is against its reception. (Commercial Bank v. Bolton, 87 Hun, 547; Truax v. Slater, 86 N. Y. 631; Bush v. Roberts, 111 id. 278; Baldwin v. Short, 125 id. 553; Sommer v. Adler, 36 App. Div. 107.)

The case of Von Sachs v. Kretz (72 N. Y. 548) has been especially pressed upon our consideration as authorizing the rulings made by the learned trial justice upon this proposition. While some general remarks are made in the course of the opinion in that •ease which standing by themselves might seem to be broad enough to sustain respondents’ position, we must fairly measure the authority of the case as a whole by the question which was there actually presented for decision. Following such Course, We think the decision there made is to be regarded as based upon the theory that the party against whom the declarations were admitted stood in the position of a mere trustee and representative of the party making the declarations and that, therefore, within principles not applicable to this case the statements were competent evidence. (Commercial Bank v. Bolton, 87 Hun, 547, 556.)

These views lead to the conclusion that the judgment appealed from should be reversed and a new trial granted, with costs to the appellant to abide event.

Adams, P. J., McLennan, Spring and Williams, JJ., concurred.

Judgment reversed and new trial ordered, with-costs to the appellant to abide the event.  