Clift v. Moses

• Decision Date: 05 March 1889
• Citation: 112 N.Y. 426,20 N.E. 392
• Parties: CLIFT v. MOSES et al.
• Court: New York Court of Appeals Court of Appeals

112 N.Y. 426

20 N.E. 392

CLIFT

v.MOSES et al.¹

Court of Appeals of New York.

March 5, 1889.

Appeal from supreme court, general term, Fourth department.

Action by Jacob L. Clift as surviving partner of the firm of C. Pardee & Co., against Lucien Moses and Alanson Dodge, to recover the amount of certain promissory notes. Judgment was given for plaintiff, and the defendant Moses appeals.

Louis Marshall, for appellant.

Wm. G. Tracy, for respondent.

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 daughter of Pardee, and with his wife lived in Pardee's family, in Skaneatelas, where the banking business of C. Pardee & Co. was carred on. Pardee was 80 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 safe 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 & 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 & 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 tract that the debt represented by them had been in any way satisfied or discharged. One Rensselaer R. 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 & 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. There 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. The 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 be very strong, and if he saw them in the possession of his wife, in 1875, or 1876, or subsequently during Pardee's life-tiem, 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 had been delivered to him by his father before his death, and he was permitted to...