Shook v. Fox

126 A.D. 565, 110 N.Y.S. 951, 1908 N.Y. App. Div. LEXIS 3404

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 1908
• Status: Published

Opinions

Smith, P. J.:

In 1901 John Striker died with the record title to a lot fifty feet front upon Fourth avenue, in the village of Lansingburg; the lot was a double lot with a double house thereupon; the north half Striker obtained by purchase in 1897; the south half thereof, which is the property in litigation here, Striker obtained from Anna 1VI. Hall in 1894. These plaintiffs claim under the will of Striker. The material part of that will reads as follows: “ First. I give at the decease of my wife the lot owned by me on Fourth Avenue in Lansingburgh, U. Y., between Seventeenth Street and Eighteenth Street, to John W. Shook, for and during his natural life; and at his decease I devise the .same in fee to John Shook and Frederick Shook, sons of said John W. Shook, equally, share and share alike;” and these plaintiffs as remaindermen claim the title to the land in controversy.

The defendant, on the other hand, claims that she is the lawful owner of said premises, and that, the lot referred to in the will of Striker was the north lot purchased in 1897, and did not include the south part of this double lot which she owns. Her evidence in part is that this property was once owned by Charles Kirkpatrick, subject to a mortgage of $1,000 held by Anna M. Hall; that after the foreclosure of this mortgage had been commenced Striker proposed to Kirkpatrick that if he would deed his equity in the premises to defendant he, Striker, would purchase this mortgage and give it to defendant, so that defendant might have a home; that Charles Kirkpatrick and his wife, pursuant to this agreement, did deed the said premises to defendant, but that Striker did not purchase the mortgage, but allowed the foreclosure to proceed and the property to be bought in by the said mortgagee, under an agreement by which he was to obtain the same from her upon payment of the amount due upon the mortgage ; that thereafter he did purchase the property of said mortgagee; that when he had acquired title he and defendant and Charles Kirkpatrick went to the office of a lawyer hy the name of Ransom. At that time and place there was drawn "and executed a paper or deed which gave the title to defendant upon her payment of rent in sufficient amount to pay the amount paid by said Striker upon the mortgage, or if the said amount should not be paid in full at the death of said Striker, then the title was to go to the defendant without further payment on her part; that this paper or deed was left with the said Ranson in escrow for her, and that the defendant continued to make payments of rent, and paid a substantial sum thereupon prior to the death of said Striker; that the said Ransom, the lawyer who held the deed in escrow, is dead, and that the paper or deed cannot be found. These are substantially the facts found by the learned trial judge, and upon which he based his judgment dismissing the plaintiff’s complaint.

We are of the opinion that the evidence of the defendant as to what transpired between John Striker and Charles Kirkpatrick in reference to a contract made in her behalf was improperly received. We think such evidence comes clearly within the condemnation of the prevailing opinion in Hutton v. Smith (175 N. Y. 375). The same facts, however, were sworn to more in detail by Charles Kirkpatrick, and were not contradicted, as in truth there was no opportunity to contradict, because of the death of John Striker. Because the facts appear by evidence of another witness unimpeached and uncontradicted, we are of the opinion that this judgment should not be reversed by reason of the erroneous admission of this evidence. If the title of the defendant must stand upon a contract between Striker and Charles Kirkpatrick, then the defense must fail, because that contract has been sworn to by Charles Kirkpatrick, who would be a party under whom the defendant would then claim, and such evidence would be incompetent to prove such fact. This defense, however, must stand upon the papers or deed delivered in escrow to Ransom for the defendant. While the evidence is not as clear and distinct as we might well wish as to the exact nature of the paper, and as to whether it was left with Ransom or kept by Striker, nevertheless it is clear that the parties went to Ransom’s office for the purpose of drawing a paper which would give this property to the defendant at Striker’s death. And some force must be given to the presumption that the paper was of a nature that would accomplish the result desired, and that it was left with Ransom for delivery to the defendant at the death of Striker. That presumption is reinforced by the fact that this paper apparently was not found among Striker’s papers at his death, and we cannot say that the finding of the trial court of the execution of the deed and its delivery to Ransom in escrow was against the weight of evidence. The evidence of Charles Kirkpatrick was given practically upon his death bed. It is not likely at that time that he was telling an untruth, and the trial court was undoubtedly impressed, as we have been impressed, with the evident intent of these parties to provide a home for the defendant at the death of John Striker. Such, too, is the purport of the declarations of Striker in his lifetime.

The evidence of Charles Kirkpatrick is not incompetent under section 829 of the Code of Civil Procedure. Defendant does not claim under him. But this evidence was given in an action ofejectment brought by the life tenant of the estate of which these plaintiffs are remaindermen against this same defendant. That action was never brought to trial, and the evidence was taken before a referee de bene esse. This evidence would seem tobe competent under section 830 of the Code, as also under the common law. (Shaw v. New York El. R. R. Co., 187 N. Y. 186.) That the remainderman is a privy of the life tenant is held in Jackson v. Lawson (15 Johns. 539, 543).

Complaint is further made that the trial court refused to allow in evidence the books of Mr. Striker, and of the executors after his death. We are unable to see how these books could in any way he competent., Their entries constituted mere hearsay evidence, and we are referred to no rule of law which makes them an exception to the general rule requiring the exclusion of such evidence. We have examined the other objections to this judgment urged by the appellant, and find no reason for reversing the same. The judgment should be affirmed, with costs.

All concurred, except Kellogg, J., dissenting in opinion, in which Coohkahe, J., concurred.