Drayton v. Drayton

241 A.D. 765

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1934
• Status: Published

Opinion

Judgment of the County Court of Nassau county affirmed, with costs. No opinion. Lazansky, P. J., Hagarty, Scudder and Tompkins, JJ., concur; Davis, J., dissents on the ground that if an actual debt arose it occurred when the stocks were finally sold. It has been found that the father knew of the indebtedness of the son to his wife prior to the execution of the mortgage, in spite of the father’s denial of the fact. If so, in spite of alleged “ fair consideration ” it is inferable that the purpose of both father and son in stripping the latter of his property was to defeat the wife as a creditor. The son abandoned her and has apparently left her penniless. I cannot see how Exhibits 4 and 5 are competent evidence. Bespondent seeks to justify them as “ admissions of an adverse party.” The admissions of one party are not competent evidence against another party whose interests are hostile to the one making the admissions. If plaintiff wished to establish an actual loan, he should have called the witnesses, who would be subject to cross-examination — not produce in lieu thereof self-serving and hearsay declarations. If we throw out the letters, nothing remains to support the loan but the uncertain testimony of the aged plaintiff.