Rank v. . Grote , 110 N.Y. 12 ( 1888 )

The documentary evidence in this case showed title in the plaintiff to a one-third interest in the land in question. That is all the evidence which was offered on her part. The defendant then offered evidence which was received for the purpose of explaining the documentary proof given on the part of the plaintiff, and to show that the real estate in question was actually partnership property, purchased for the purposes of the partnership and paid for with partnership funds After a careful perusal of all the evidence taken on the trial (and it was uncontradicted), we think the case for the defendant was so conclusively proved as to leave no question for the jury It is quite unnecessary to set forth here the evidence which was thus taken. We have given the able argument of the appellant full consideration, but our opinion in regard to the conclusive character of the evidence for the defendants remains the same.

It is conceded that if the title to the real estate was in the partners surviving, this action of ejectment cannot be maintained. Upon the trial the defendants called as a witness William Steinway, who was the grantor of the premises in question in the deed from William Steinway and wife to Frederick Grote. The grantee, Frederick Grote, was the deceased partner in the firm, the surviving members of which, as defendants alleged, were the owners, as such, of the land in question. When the witness Steinway, being such grantor, was asked by the counsel for defendants to state the personal transaction which took place between the witness and the deceased grantee and partner, at the time of the sale of the premises and the execution of the deed, the plaintiff's counsel objected to the evidence as not admissible for several reasons, one of which was that section 829 of the Code prohibited it.

We do not think the evidence is within the mischief of the statute. The witness was wholly disinterested in the question in reference to which he was sworn. To make it out partnership property did not render the surviving partners personally liable to pay for the land, in the absence of any personal obligation, for the method of payment was agreed upon, and was in writing, and did not include the personal obligation of either.

Nor does it seem to us that the facts of this case make out the witness to be a person from, through or under whom the defendants derived their interest or title within the meaning of the statute under consideration. The person from, through or under whom the title came within that meaning, was, as we think, Frederick Grote, the deceased partner and grantee. The plaintiff claims by will from him, and the defendants seek to destroy that claim by proof that the surviving partners have title through Frederick Grote as the grantee for the partnership, and for which he was a trustee, and from whom each had a deed of a designated interest in the property. This makes Frederick Grote the individual who had the whole legal title, and the defendants did not derive their title from, through or under Steinway, and do not succeed to his title or interest within the meaning of the section mentioned, but do derive such title from Frederick Grote. The evidence was not, therefore, objectionable on that ground.

The other ground of objection was, that the oral evidence was inadmissible to alter the effect of the deed from Steinway to Frederick Grote. Such evidence is clearly admissible for the purpose of holding the grantee as trustee for the firm. (SeeFairchild v. Fairchild, 64 N.Y. 471.)

There are no other exceptions which require notice.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.