79 N.Y. 415, Church v. Howard

Citation79 N.Y. 415
Party NameWILLIAM C. CHURCH, as Administrator, etc., Appellant, v. SETH HOWARD, impleaded, etc., Respondent.
Case DateJanuary 13, 1880
CourtNew York Court of Appeals

Page 415

79 N.Y. 415

WILLIAM C. CHURCH, as Administrator, etc., Appellant,

v.

SETH HOWARD, impleaded, etc., Respondent.

New York Court of Appeal

January 13, 1880

Argued Dec. 5, 1879.

Page 416

COUNSEL

S. D. White, for appellant. The note in suit was not outlawed as to Howard. (Old Code, § 102; New Code, § 402.) The court erred in receiving the declarations of plaintiff as to the erasure. (5 Barb., 406-407; 19 Id., 310; Thompson v. Peters, 12 Wheat., 565; 1 Phil. on Ev. [ Edward's ed.], 483; Id., 481, note 133; White v. Miller, 71 N.Y. 118; 34 Barb., 539, 544.) Fargo was not a competent witness to testify as to what he did.

Page 417

(8 Hun, 127; 13 Id., 13, 14; 62 N.Y. 80; 1 Kent, 517-518; 32 Barb., 250.) The court erred in receiving the testimony of defendant Howard as to personal transactions with plaintiff's intestate. (New Code, § 829; 17 Hun, 470-472; 46 Barb., 30; 48 Id., 190; 12 Hun, 179; 69 N.Y. 404; Id., 257-260; 64 Id., 457; 66 Id., 433; 68 Id., 419.) It was error to allow Howard to testify as to what Fargo told him about his name being stricken off the note and this error was not cured although the case was given to the jury upon the sole question of alteration. (5 Den., 81; 19 N.Y. 299; 3 Keyes, 497-499; 52 Barb., 365; 55 N.Y. 400, 408; 3 Hun, 70; 11 Id., 82, 87, 88.) The note was properly received in evidence without first explaining the erasure. (Maylue v. Sniffin, 2 E. D. Smith, 1.)

A. N. Sheldon, for respondent. Fargo was a competent witness. (Code of Civil Procedure, § 829; 2 Wait's Pr., 449; Comstock v. Hier, 73 N.Y. 269; Synonds v. Peck, 10 How. Pr., 395; 70 N.Y. 385; 5 Hun, 536; Allis v. Stafford, 14 Hun, 418; Markell v. Benson, 55 How. Pr., 360; Wetmore v. Peck, 19 Alb. L. J., 400; Marpass v. Gilman, 16 Hun, 121; Church v. Howard, 17 Id., 5; Hobart v. Hobart, 62 N.Y. 80; Crary v. White, 59 Id., 336; Simmons v. Sisson, 26 Id., 264; Lobdell v. Lobdell, 36 Id., 333.) There was no error in receiving the evidence given by defendant Howard. (Paige v. Fazackerly, 36 Barb., 392; Smith v. Hill, 22 Id., 656; People v. Third Ave. R. R. Co., 45 Id., 63; People v. Cook, 8 N.Y. , 67; Tooley v. Bacon, 70 Id., 34; 2 Wait's L. & Pr., 634; 38 N.Y. 186; 32 Id., 440, 441; Wood v. Tunnicliff, 74 Id., 38.) The admissions of an executor or administrator when a party to the action are competent evidence against him because he represents the estate and is in privity with the decedent. (1 Greenl. on Ev., § 189; 2 Cowen & Hill's Notes, note 172; 1 Phillips' Ev., 90; Starkie on Ev., title admission; Fraunce v. Gray, 21 Pick., 243; Hill v. Buckinmister, 5 Id., 291; Atkin v. Sawyer, 1 Id., 192;

Page 418

Tenny v. Evans, 14 N. H., 343; Cayuga Bk. v. Bennett, 5 Hill, 236; Lane v. Doty, 4 Barb., 535; Barger v. Durin, 22 Id., 68; Wilcox v. Smith, 26 Id., 318; Stevens' Dig. of Ev., p. 66; Mooers v. White, 6 Johns. Ch. R., 373; Brown v. Miller, 2 Kern., 118; Forsyth v. Ganson, 5 Wend., 558; 17 Hun, 5, fols. 197-202.)

MILLER, J.

The defendant Howard interposes in this action as a defense that the note was altered without his knowledge or consent, and one of the principal questions controverted upon the trial was whether the alteration was made by the authority, direction or consent of the intestate. In regard to this branch of the case one Mrs. Scranton was called and sworn as a witness for the defendant, and testified that Mr. Church, the plaintiff, came to her house after the decease of his wife and there had a conversation, in the presence of herself and her husband, as to the note in controversy...

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