Poucher v. Scott , 40 N.Y. Sup. Ct. 223 ( 1884 )

Hardin, J.:

After the evidence offered by the plaintiff was received and closed, the referee came to the conclusion that it was his duty to grant a nonsuit. The rule is well settled that where the evidence is insufficient to warrant the verdict of a jury, or a finding of facts favorable to the plaintiff sufficient to support a judgment in his favor-, it is the duty of the court to grant a nonsuit. (Deyo v. N. Y. C. R. R. Co., 34 N. Y., 13.)

While the checks were in the hands of Childs, on the 5th of June, 1874, the fact that he received them from the savings bank, and the possession of them, concur in establishing that he was then the owner of the checks, as the checks were payable to bearer when they were found in the possession of Scott, the presumption attached to them is that Scott was the owner of them. There was no evidence offered in the progress of the trial indicative of the manner in which Scott became possessed of the checks. There was no evidence indicative of the manner or time when Childs parted with or surrendered the possession of the checks. As we have already said,, the possession of the checks by Scott at that time, the sixth of June, as they were payable to bearer, was presumptive evidence that he Was owner of them, and that he came rightfully into the possession of them. We think the evidence warranted the referee in applying-the principle laid down in the Court of Appeals in Koehler v. Adler (78 N. Y., 290).

In that case Chief Justice Chuegh, in the course of his opinion,, says, viz.: “ It is not claimed that this check is evidence of money loaned, but, on the contrary, the presumption is that it was paid upon some debt or obligation owing by plaintiff.” We are inclined to' think that if the fact appeared that the checks were passed directly between the hands of Childs and Scott without an explanation of circumstances, the proper inference to be would be that they were delivered in payment of a debt, and that inference of an indebtedness would arise from such facts.

In the second volume of Greenleaf on Evidence (§ 112) it is said, viz.: “ In pi’oof of the count for money lent it is not sufficient merely to-show that the plaintiff delivered money or a bank chock the defendant; for this, prima facie, is only evidence of the payment by the plaintiff of his own debt antecedently due the defendant.” It has been repeatedly held that the delivery of a promissory note by one party to another, or the delivery of a check by one party another, gave rise to the presumption that the delivery was made liquidate an indebtedness from the maker to the payee.

"We have found no evidence in the case changing that presumption, attending the possession of the cheeks by Scott. They may have been paid to him for an antecedent indebtedness by Childs, or Childs may have put them afloat in commercial channels and some creditor of Scott may have become possessed of them and paid them to him, or even made a gift thereof to hinf. Speculation and guesses are insufficient to establish an indebtedness on the part of Scott for the checks. The presumptions to which we have alluded - are legitimately in his favor, and they continue to be a perfect proteetion’ to him and his estate, unless the contrary thereof is estab-, lished by evidence. We have looked carefully through the evidence, in vain, to find in it anything to overcome the presumption to which we have alluded. The onus was upon the plaintiff, and as the plaintiff failed to establish any indebtedness on the part of Scott to Childs, we think the conclusion of the referee was correct. There was such a lack of proof of the essential fact of the plaintiff’s alleged cause of action, that a verdict of a jury would not be allowed to stand in favor of the plaintiff, and it was therefore proper for the referee to hold and decide, as a matter of law, that the plaintiff failed to make out a case. (Scofield v. Hernandez et al., 47 N. Y., 313.)

Second. During the trial, while was on a witness, he stated he knew Childs in his lifetime, and that Childs had been collector of customs in the city of Oswego, and that he was acquainted generally with his circumstances. Then the witness was asked the following question, viz.: “ Will you State in regard to bis means and circumstances since about 1870, during tbe last four years of bis bfetime ?” This question was objected to and tbe • objection sustained. It is now insisted by the appellant that tbe referee erred in the ruling. We think, however, that tbe evidence was too remote, and that it was not error to exclude it. (Carroll, executor, etc., v. Deimel et al., 18 Weekly Digest, 549.) In that case a payment was in dispute, and it was held that evidence that a “ party made no deposit of a certain amount about tbe time a payment is claimed to have been made to such party, is not competent to disprove tbe fact of such payment.” (Nicholson v. Waful, 70 N. Y., 604.) In that case evidence was offered of acts and declarations, some two or three years prior to tbe alleged loan, inconsistent with the loan of money, by tbe lender, and it was excluded. . Tbe court held that the evidence excluded was too remote and inconclusive, and the rejection thereof was not error.

Moore v. Meacham (10 N. Y., 211) is an authority for saying that the presumption in the absence of proof 'was that the intestate was solvent, and for that reason proof that the party was in good credit, established nothing more than the presumption, and although such proof was given it furnished no satisfactory ground for alleged error. The question presented to us in Nicholls v. Van Valkenburgh (15 Hun, 230) differs from the one now before us. That related to the improbability of a note being allowed to remain over-due for several years, without any demand of payment or attempt to collect the same, and we thought this evidence of circumstances of the party was admissible to give" rise with other evidence to a presumption that, if the note had been a valid claim, it would probably have been demanded and its payment enforced, and we relied somewhat on the case of Waddell v. Elmendorf (10 N. Y., 170). There evidence showing the embarrassment and insolvency of a judgment debtor was held to be competent, as tending to rebut the presumption of payment of a judgment recovered in 1810.

Third. Plaintiff sought on the trial to prove what was the amount of Childs’ estate that came into his hands as administrator. This was objected to as irrelevant, incompetent and inadmissible, and the objection was sustained and plaintiff excepted. We fail to see how the extent of assets which had come into the hands of the administrator could £e made to shed any light upon the issue presented by the pleadings, or to bear upon the question whether or not the intestate had made a loan to the testator. ¥e are not prepared to say there was any error in this ruling. Plaintiff sought to prove by himself as a witness that he had a conversation with the testator a few days after the death of the intestate, and before letters of administration were issued to him in respect to the two checks, and also a conversation had in April, 1878, in respect to the two checks, and the statement and conversation of the testator in respect to the same.

The evidence was objected to on the ground that the witness was not competent under section 829 of the Code. Was there any error in excluding this evidence ? It is provided in that section, viz.: “ A party or person interested in the event * * * shall not be examined as a witness in his own behalf or interest * * * against the executor, administrator, or survivor of a deceased person * * * concerning a personal transaction or communication between the witness and the deceased person.” We are of the opinion that the administrator was a party to this action. We cannot divorce him from the office of administrator, and say that he was not a party and that the real party to the action was the office of administrator. The personal transaction or communication sought to be shown took place between the witness and the deceased person.

Fourth. Plaintiff was a person interested in the event of this action. “ A recovery in this action would enhance the fees which the plaintiff, as administrator, would be entitled to; it would save the plaintiff from liability to costs. The testimony which he sought to give, was offered in his own behalf or interest.”

We think he was not a competent witness to give the conversations or transactions between himself and the deceased testator. He is made incompetent by the letter and spirit of section 829. (Steele v. Ward, 30 Hun, 555; Allen v. Blanchard, 9 Cow., 633; Church v. Howard, 79 N. Y., 415; Willis v. Montgomery, 78 id., 282; Butler v. Warren, 11 Johns., 58.)

In the case last cited it was said, “the rule is stubborn and inflexible that if a witness has a direct interest, however small, in the event of the cause, he cannot be admitted to testify upon the trial in favor of that interest in any respect or degree.” Phillips on Evidence (vol. 1, p. 81) says: “ The law looks on a witness as interested where there is a certain benefit or disadvantage attending the consequence of the cause one way.” We are of the opinion that section 829 has not made a witness situated as plaintiff is, in respect to conversations and communications sought to be proved, a competent witness. (Hill v. Alvord, 19 Hun, 79.)

Plaintiff sought to use his own testimony “ in his own behalf or interest,” and the objection therefore was well founded. (Ely v. Clute, 19 Hun, 36; Hill v. Hotchkin, 23 id., 414.)

Hall v. Richardson (22 Hun, 445) does not aid the appellant. That was an action against Richardson, personally, based upon his individual agreement and not on any agreement mady by him as executor or by his testator. Nor does Champlin, v. Seeber (56 How., 46) aid the appellant. In that case the witness~’was not called to speak of transactions and communications had with the deceased person against the administrator, executor, heirs-at-law, devisee or survivor of such person. Having found no legal error in the course of the trial, the judgment entered on the report of the referee should be affirmed.

Smith, P. J., and Barker, J., concurred.

Judgment affirmed.