Hutton v. Smith

• Decision Date: 09 June 1903
• Citation: 67 N.E. 633,175 N.Y. 375
• Parties: HUTTON v. SMITH et al.
• Court: New York Court of Appeals Court of Appeals

175 N.Y. 375

67 N.E. 633

HUTTON

v.SMITH et al.

Court of Appeals of New York.

June 9, 1903.

Appeal from Supreme Court, Appellate Division, First Department.

Action by John P. Hutton against Rosanna Smith and others. From a judgment of the Appellate Division (77 N. Y. Supp. 523) affirming a judgment for plaintiff, defendants appeal. Affirmed.

H. K. Coddington, Warren Leslie, and Gilbert W. Minor, for appellants.

Michael J. Kelly and Samson Lachman, for respondent.

PARKER, C. J.

The judgment in this action adjudges that one Rose Ann Coyle did create an irrevocable trust in favor of plaintiff in certain deposits made in the Union Dime Savings Institution some time prior to May 15, 1879, on which day she withdrew the deposit, using the identical money in the purchase of lands in her own name, and that plaintiff is entitled to impress a trust upon said lands in the sum of $1,976, with interest from the date of the withdrawal, and to a lien thereon in said amount, and to a sale of the premises to satisfy the same; and the judgment contains other provisions appropriate to such adjudication.

The trial court adopted the short form of decision, in which were stated the reasons for the decision. The Appellate Division unanimously affirmed the judgment, and one of the results was to take from this court the power to pass upon a number of questions argued by defendants.

They insist that there is no finding by the court below which justifies the inference that there was any irrevocable trust created by Mrs. Coyle in favor of plaintiff-with which contention it may be said, in passing, we do not agree-and that there is no testimony in the case upon which could be predicated a finding that an irrevocable trust was created.

To this contention we must make the answer ofttimes made in this court-that the conclusiveness of the judgment is such as to preclude us from examining the evidence as to its sufficiency to sustain the material facts alleged by plaintiff, for the legal effect of a short decision is the same as of a judgment entered on a general verdict, and the same presumptions apply. Cons. El. Storage Co. v. Atlantic Trust Co., 161 N. Y. 605, 56 N. E. 145;Marden v. Dorthy, 160 N. Y. 39, 54 N. E. 726,46 L. R. A. 694;Amherst College v. Ritch, 151 N. Y. 282, 45 N. E. 876,37 L. R. A. 305;Szuchy v. Hillside Coal & Iron Co., 150 N. Y. 219, 44 N. E. 974.

So far as our right of review is concerned, therefore, it matters not whether the trial court found, in terms, that there was an irrevocable trust created, for, the complaint having so alleged, and the decision having proceeded on that view, it would be the duty of this court to assume, in view of the unanimous affirmance of the Appellate Division, that such a fact was necessarily found by the trial court, inasmuch as such a finding is necessary to support the cause of action alleged in the complaint.

For the same reason, we are prevented from considering another point urged-that plaintiff's claim is barred by the 10-year statute of limitations. The decision asserted that the claim was not barred, because ‘the statute did not begin to run against said plaintiff until the death of said Rose Ann Coyle, in 1892, nor for the additional period of 18 months thereafter.’ Now the learned counsel for defendants insists that, because the trial court did not find specifically that Mrs. Coyle did not repudiate the trust when she drew the money from the savings bank and purchased the real estate, it is open to this court to examine the evidence, and decide therefrom whether there was a distinct, unequivocal repudiation of the trust at that time by her, and, if the inference of fact should be drawn that such was the effect of her acts, then the court should hold that the statute began to run at that time, and the claim was barred. But one of the questions the trial court had to decide related to the statute of limitations, and, when it decided that the statute did not begin to run until 18 months after the death of Mrs. Coyle, it necessarily decided that the evidence did not permit the finding of fact that she unequivocally repudiated the trust at the time of the purchase of the real estate. We are precluded, therefore, from examining the testimony for the purpose of determining whether Mrs. Coyle did intend on the 15th day of May, 1879, to repudiate the trust.

The only exceptions presented by the record that may be reviewed in this court were taken to the admission and rejection of testimony.

Plaintiff, against objection that his testimony was incompetent under section 829 of the Code, was permitted to testify to a conversation between his uncle Philip and Mrs. Coyle, in his presence, when he was 15 years old, in which he took no part. According to the witness, his uncle said: ‘I will have that money, or I will know the reason why.’ Mrs. Coyle replied: ‘I have it in trust for John, the orphan [meaning plaintiff], and you can't get it.’ This evidence the Appellate Division deemed proper, on authority of O'Brien v. Weiler, 140 N. Y. 281, 286,35 N. E. 587, in which Cary v. White, 59 N. Y. 336, and Simmons v. Havens, 101 N. Y. 427, 5 N. E. 73, were cited as supporting the proposition laid down. These cases were, in turn, based upon earlier decisions construing section 399 of the old Code, or that section as amended, which now constitutes section 829 of the present Code. The earliest case I have found in this court is Simmons v. Sisson, 26 N. Y. 264. There a defendant in an action brought by an administrator was permitted to testify to a conversation heard by him between deceased and a third person; and it was held that, as the conversation was not a transaction between deceased and the witness, section 399 did not prevent him from testifying to it. In Lobdell v. Lobdell, 36 N. Y. 327, it was said that a man has a right to testify in his own behalf in every respect, except as restrained by statute, and that, while section 399 precludes a witness from testifying as to transactions or communications with a person since deceased, it does not, in terms, render him incompetent to testify to conversations and transactions overheard or witnessed by him between deceased and a third person. In Cary v. White, 59 N. Y. 336, he decision advised by the opinion was sustained by a bare majority of the court, but the argument by which that conclusion was reached seems to have received full assent of but one of the majority-Judge Grover. The opinion, after citing the Lobdell Case, supra, said: ‘It must, we think, be regarded as settled, under the present provision of the Code, that the 399th section does not preclude a party from testifying to the statements of a person deceased, made to a third person in the hearing of the witness.’ In Kraushaar v. Meyer, 72 N. Y. 602, it was held (all concurring) that a witness who participated in a conversation between deceased and a third person relating to a transaction between the witness and deceased is prohibited by section 399 from testifying to the conversation, although he is not incompetent, under that section, to testify to an independent conversation between deceased and the third person, in which he did not participate. In Simmons v. Havens, 101 N. Y. 427, 5 N. E. 73, a witness was allowed to testify to conversations between deceased and another, at which the witness was present, but in which it did not appear that she took any part; and this court held the evidence to be proper, on the authority of Cary v. White, supra.

Now, before specially considering O'Brien v. Weiler, supra, another line of authorities, that must be admitted to have created an exception to the rule of those cases, will be taken up. The first is Holcomb v. Holcomb, 95 N. Y. 316, in which the court said: ‘The policy of the statute excludes the evidence of an interested witness concerning (1) any transaction between himself and a deceased person, or in which the witness in any manner participated; (2) all communications between the person deceased and the witness, including communications in the presence or hearing of the witness, if he in any way was a party thereto, or communications to either one of two or more persons, if all were interested. * * * If, while the decedent is conversing with a third person, the witness by word or sign participates in, or is referred to, his evidence of what occurred cannot be received.’ To the same effect are Lane v. Lane, 95 N. Y. 494, and Matter of Smith, 95 N. Y. 516. In Matter of Eysaman, 113 N. Y. 62, 73,20 N. E. 613,3 L. R. A. 599, this court (Chief Judge Ruger writing) approved the holding in the Holcomb Case that ‘the policy of the statutes excludes testimony of an interested witness concerning any transaction with the deceased in which the...