the husband. The cases are quite dissimilar and do not rest on the same principle. These views lead to a reversal of the judgment of the general term, and of the decree of the surrogate, with costs to the executors out of the estate. All concur. Judgment reversed. EVIDENCE-PERSONAL LERCHE, Appl't, v. BRASHER, Resp't.* January 18, 1887. TRANSACTIONS WITH DECEASED PARTY-CODE, § 829 POWER OF ATTORNEY-TRANSCRIPT OF CLERK'S RECORD. A judgment should not be reversed for an error in admitting evidence which is so far immaterial that, if stricken out, it could in no way affect the result. A transcript of a power of attorney, authorizing the conveyance of real estate, duly recorded in the proper clerk's office, may be received in evidence as if the original was produced. Plaintiff was asked this question: "What was done by you, excepting, of course, personal transactions or communication with the deceased - defendant's testator from the time you first commenced your labor down to his death?" This was objected to as incompetent, and calling for transactions with deceased. The objection was overruled, and the court stated that what he intended to rule was that the plaintiff could not testify to an employment or request by the deceased, but where that was proved by other evidence, the party might describe simply the things which he did, provided such acts could have been done in the absence of deceased, and without his immediate or personal participation. Held no error.t Appeal by the plaintiff from an order of the general term, affirming an order made at the circuit, setting aside a verdict of $750 in his favor, and granting a new trial on defendant's motion, made at the close of the trial upon the exceptions. G. A. Clement, for appellants. Thos. E. Pearsall, for respondent. FINCH, J. The plaintiff brought this action, claiming to recover about $2,600 as compensation for services rendered to the defendant's testator in the character of his agent and attorney. The contract of employment was proved beyond all question, by evidence wholly uncontradicted, and of a kind open to no criticism. The services rendered began a few days before January 14, 1880, on which day the plaintiff collected a judgment of about $500, in favor of Van Wyck. On that day the latter, by a written instrument, the signature to which was proven and not questioned, appointed plaintiff his "attorney in fact" for all matters pertaining to two actions which were specified. That the employment was earlier than that is evident from a letter of Van Wyck, dated December 30, 1879, in which he speaks plainly of the existing relation. Other letters are quite as decisive, and on the 10th day of February, 1880, Van Wyck gave to plaintiff a general power of attorney, covering substantially the transaction of all his business. The employment was further proved by at least one witness, who swore to the statements of the testator to that effect. Reversing, 22 W. Dig. 350. See STEWART RAPALJE's article on" Testimony as to Transactions and Communications with Deceased Persons," in 33 Alb. L. J. 84; see, also, Simmons v. Havens, 4 East. Rep'r, 278; s. c., 101 N. Y. 427; Mills v. Davis, 41 Hun, 415; s. c., 3 N. Y. State Rep'r, 146; Blaesi v. Blaesi, id. 431; Matter of Wilson, 7 East. Rep'r, 737; s. c., 3 N. Y. State Rep'r, 613; Morehouse v. Morehouse, 41 Hun, 146; s. c., 3 N. Y. State Rep'r, 790. The general character of the services contracted for and rendered was also shown by evidence outside of any thing which fell from the plaintiff. The property of the testator had been taken from him on account of his intemperate habits and placed in the hands of a committee. Van Wyck had become restored to health and capacity, and entitled to receive back and manage his property. The committee had placed the estate in the hands of Morris & Pearsall, his attorneys, and in a letter dated February twenty-seventh, Van Wyck notifies plaintiff, that they had agreed to deliver the papers if he, Van Wyck, would call for them, and adds: "I shall not go, and so shall answer. They shall settle with you alone." That they did so settle the defendant himself proved. The amount of property thus delivered over was about $28,000. The defendant also proved the payment of the Walsh mortgage of $5,500, and the interest upon it, to plaintiff. There was thus clear evidence of the employment and the general nature of the services rendered outside of any testimony given by the plaintiff in his own behalf. A verdict was rendered in his favor for $750, or about onequarter of his claim. A motion was made upon the minutes and the exceptions taken to set aside the verdict and for a new trial, which was granted upon two grounds relating to the admission of evidence. On appeal the general term affirmed the order, but for other and different reasons. The trial judge specified two such errors as the ground of his action. On the hearing, after the plaintiff had described the work he had done, he was asked if he had been paid for it. To this inquiry the defendant objected as involving a personal transaction with the deceased. The objection was overruled, an exception taken, and the witness answered, "no." The answer negatived a personal transaction with the testator and was equivalent to a declaration that neither the deceased nor his administrator with the will annexed had paid for the services rendered. But while the objection was a good one the evidence was wholly immaterial. The plaintiff was not required to prove the negative, and payment was an affirmative defense, the burden of establishing which was upon the defendant. No evidence in that direction was offered or given, and striking out the inadmissible answer would in no possible respect affect the result reached. We ought not to reverse a judgment on so narrow a ground. The trial judge further held that it was error to admit the transcript from the register's office of New York of Van Wyck's power of attor ney. When first offered it was objected to as secondary evidence and as no proof of the original. The court said: "It is no proof that Van Wyck executed it; it is simply proof that a paper of this kind is on record;" and thereupon overruled the objection, and defendant excepted. The plaintiff then testified, without objection, that he had had the original in his possession but had lost it, and on a careful search had been unable to find it. At a later period of the case the power of attorney was read in evidence against an objection that there was no proof that Van Wyck ever executed it, and the paper was incompetent. By the Revised Statutes-vol. 3, 6th ed., p. 1151 § 73-a power of attorney authorizing, as did the one in question, the conveyance of real estate, may be recorded in the clerk's office of any county in which the land affected is situate, and the record be received in evidence with like effect as a conveyance, My first impression was that there was not sufficient proof that Van Wyck owned land situated in New York county, but a careful reading of the evidence shows that while the proof was not direct and pointed there is an abundance of it from which the natural and necessary inference of such locality follows. The Code provides section 933- that a transcript from a record kept "pursuant to law" in a public office of the State whose incumbent has an official seal, when properly certified by the officer is evidence as if the original was produced. Under these provisions the transcript was properly received in evidence. - The general term in affirming the order for a new trial placed no reliance upon the objections thus considered, but rested its action upon the much more serious ground that the plaintiff was permitted to state in detail the services he rendered in the face of an objection that such proof involved a personal transaction with the deceased. The trial judge stated distinctly and carefully what he intended to rule. He said the plaintiff could not testify to an employment or request, but where that was proved by other evidence, the party might describe simply the things which he did, provided such acts could have been done in the absence of deceased and without his immediate or personal participation. Acting upon this basis the court excluded all evidence of visits to Van Wyck's residence or of facts which Van Wyck, if living, could have directly contradicted by his own oath, and limited the proof to independent facts. These were that plaintiff collected the Erce judgment, the Walsh mortgage and the assets in the hands of the committee, and to effect those results made certain calls upon the committee and his attorneys, and examinations of records in other counties. The only objection taken was a general one to the question with which the inquiry began, and that question was "what was done by you, excepting of course personal transactions or communications with the deceased, Mr. Van Wyck, from the time you first commenced your labor down to his death?" The objections were thus phrased; "as incompetent and calling for transactions with deceased." The question was proper in form. It called for no objectionable proof, and if any was proffered under it the defendant's duty was to object specifically and move to strike out so much of the answer as exceeded the legitimate scope of the inquiry. Nothing of this kind actually and in terms occurred. The only further objection taken to the evidence, under the provision of the Code, was to the inquiry "how much time" his detailed services occupied. At the close of the case there was an exception to the charge to the jury, in which the judge explained the reasons why he permitted the plaintiff to testify to what he did. Whether those reasons were sufficient, or, in all respects, correct, was immaterial. The sole question was whether any of the evidence objected to, and admitted, was competent under the Code. Some of it, we think, was. Possibly one objection might be treated as a motion to strike out an answer. To the inquiry proper, in form, because excluding personal transactions or communications, the witness said: "I went to Morris & Pearsall's office, and got the papers in the case of Van Wyck, by committee against Ostermeyer and Bracker, and went to Albany to prepare the case with Judge HAND for the court of appeals." The record adds: "Objection to this evidence renewed" "as calling for a transaction with the deceased." If we indulge in the latitude of treating this, which is the sole specific objection taken, as fairly equiva lent to a motion to strike out, we are still of opinion that the two facts related were independent facts, in which the deceased was not personally a participator, and which, if living, he could not for that reason have contradicted. They might have been done without his authority or knowledge, as were some other acts of the plaintiff, and did not necessarily involve a personal transaction with him. When that inquiry arose by reason of his employment, or request, the mouth of the witness was closed. If that employment, or request, in any man- . ner, or to any extent, rested upon an inference drawn from the character of the facts done, the evidence would be incompetent. But no such error was committed. The jury were expressly warned against it, and told "before you can find the fact of the employment, you must be satisfied of it by testimony other than his own." On this state of the record we think the ruling at the trial was not erroneous, and especially for the reason that the facts specifically challenged were substantially proved by the deceased's own written communications. The general term intimated a doubt whether defendant's counterclaim was not erroneously excluded. The court admitted the facts as a defense, and excluded them as a counter-claim, and with this ruling the defendant seems to have been contented, for he took no exception. The orders appealed from should be reversed, and the judgment for plaintiff ordered on the verdict, with costs. All concur, except RAPALLO, J., not voting. ARMSTRONG, Resp't, v. MCKELVEY, Appl't.* January 18, 1887. - WILL-LEGATEES ELECTING TO TAKE LAND — CODE, § 1843. Legatees of proceeds arising from the sale of real estate may elect, no other rights intervening or being prejudiced thereby, to take the land itself; and an election is established in taking possession of the land as their own. Although such election does not divest the naked legal title of the heirs at law, still it vests the equitable ownership, and the legatees may at any time require and compel a transfer of the formal title. Section 1843, Code of Civil Procedure, which provides that devisees are liable "to the extent of the estate, interest, and right in the real property which descended to them from, or was effectually devised to them by, the decedent," does not require, as a condition of liability, that the legal title shall have passed. The doctrine of equitable set-off will be exerted only in a case where the equity invoked is entirely clear and certain. Appeal from judgment of general term, fifth department, affirming a judgment entered on the report of a referee. James Wood, for appellant. J. B. Adams, for respondent. FINCH, J. The opinion of the general term upon an appeal to that tribunal is an adequate and accurate solution of the questions involved, *Affirming 39 Hun, 213. and leaves for us only the duty of testing the criticism with which it is assailed. The argument against it in the end comes down to a single point which challenges the proof relied upon to establish a reconversion of the personal estate into land. It begins with the proposition that the will of the testator gave to the defendants the price or proceeds of the real estate, effecting an equitable conversion, and the legal title to the land descended meanwhile to the heirs at law who are not identical with the legatees; and that the sale by the executor when set aside by the court simply restored the statu quo, and the judgment rendered, so far as it went beyond that relief, was outside of the issue and bound nobody as a record, or by way of estoppel. The argument then, assuming that the legal title remains yet in the heirs at law, denies that the legatees have received either the price of the land or the land itself, and so insists that the necessary facts were not proven to establish a liability to the creditor. It is at this point that collision with the opinion of the general term for the first time begins, since that opinion distinctly concedes the descent of the legal title to the heirs at law, and does not hold that the judgment, in so far as it decrees a reconversion into land and a title to that land in the defendants, is binding upon them to its full extent, either by its direct force, or by way of estoppel. It uses it in another manner and for a different purpose. It assumes, with entire accuracy, that the provisions referred to were inserted in the judgment at the request and by the procurement and with the full assent of the defendants, and established their choice and election to avoid a sale and take their legacies in the land itself instead of the proceeds when they took possession of the property as their own and in accordance with the terms of the judgment. This they were at liberty to do, no other rights intervening or being prejudiced by the act. Hetzel v. Barber, 69 N. Y. 11; Prentice v. Jansen, 79 id. 480. It may very well be that while this reconversion changed the defendants from legatees of money to devisees of land, the change did not divest the heirs at law of their legal title, and ipso facto transfer that title to the defendants, as might easily be held where the devisees and heirs at law were absolutely identical. But that inquiry need not be pursued. The legal title which descended was purely formal, utterly barren and naked, and the effect of defendants' election was, at least, to vest in them the equitable ownership of and the entire beneficial interest in the land, and enable them at any moment to require and compel from the holders of the formal title its complete transfer. The provisions of the Code under which the liability of devisees arises § 1843 - do not require as a condition that the legal title shall have passed. Such devisees are made liable "to the extent of the estate, interest and right in the real property which descended to them from, or was effectually devised to them by, the decedent." There was such effectual devise to them of the entire beneficial interest in the land if they chose so to accept it. The donor must be understood to have given them that option - Hetzel v. Barber, supra-and they were at liberty to take and could do so effectually in the character of devisees. The real assault, therefore, upon the general term opinion respects the proof of that election, and VOL. IX.-55 |