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App. Div.] Fourth Department, March, 1910.

an action was under specified conditions made conclusive as to the title established therein against all persons claiming from, through or under the party against whom the same was rendered. In view of the different provisions of the statute now in force the case would seem not to he an authority that defendant in this action, a purchaser without notice of the former action, either actual or constructive, would be bound by a judgment in that action even if it could be revived and prosecuted to judgment.

In specifying plaintiff's estate in the property, recovery of which is directed by the verdict, it is apparently by inadvertence stated "that the plaintiff is the owner in fee of the property in dispute." The complaint shows, and the proof establishes, that plaintiff is the lessee of the premises. No reference is made by counsel to this inaccuracy, and doubtless it may properly be corrected when judgment is entered on the verdict.

The defendant's exceptions should be overruled and motion denied, with costs; and judgment ordered for plaintiff on the verdict.

'All concurred, except Kruse, J., who dissented, upon the ground that the trial court erred in directing a verdict for the plaintiff: (1) That the evidence supports a finding that the plaintiff's paper title does not extend east beyond a point in line with the west end or head of the cove as it existed when the Woodman deed was given; or, at least, not east of the so-called Johnson traverse line across the sandbar, and that the sandy lowland lying north of the cove is not covered by the Woodman deed; (2) also that the question of adverse possession should have been submitted to the jury.

Defendant's exceptions overruled, motion for new trial denied, with costs, and judgment directed for the plaintiff upon the verdict, with Costa.

Fourth Department, March, 1910. [Vol. 137.

Louise C. Adenaw, as Executrix, etc., of M. Emeline Mcmillan, Deceased, Plaintiff, v. Pauline A. Piffaed and D. Halsey Piffaed, Defendants.

Fourth Department, March 9, 1910.

Evidence — claim against estate — transactions with decedent — waiver of protection of section 829 of the Code of Civil Procedure — counterclaim arising out of same transaction — breach of contract before time of performance.

Where an executrix substituted as plaintiff in an action brought by her testatrix to recover possession of personal property delivered to the defendants, who assert a parol agreement by the testatrix that the property should become theirs on her death, reads in evidence a deposition made by the testatrix, taken when she was ill and unable to attend the trial, showing that she delivered the property to the defendants uuder some parol agreement, but that they failed to return it on demand, the bar of section 829 of the Code of Civil Procedure ia waived, and the defendants may testify as to the parol agreement alleged in their answers.

Where the deposition introduced by the plaintiff did not relate to a single transaction between the parties, but to a series of transactions, the way is opened to the defendants to give evidence as to all of them.

A counterclaim based on a breach of the agreement by the testatrix that the property should belong to the defendants on her death, and that she would leave them certain property by will, arose out of the same transaction as that on which the plaintiff's action is founded, and is available to the defendants undei section 501 of the Code of Civil Procedure.

Although the property was not to belong to the defendants until the death of the testatrix, they can assert a counterclaim for a breach of such contract while the testatrix was living if she repudiated it by refusing to carry it out.

Mclennan, P. J., and Keusk, J., dissented, with opinion.

Motion by the plaintiff, Louise C. Adenaw, as executrix, etc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the defendants after a trial at the Livingston Trial Term in May, 1909.

Kidder M. Scott and Edwin A. Nush, for the plaintiff.

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App. Div.] Fourth Department. March, 1910.

Williams, J.:

The plaintiffs exceptions should be overruled and the motion for a new trial denied, with costs.

The action was brought in the lifetime of plaintiffs testatrix to recover possession of personal property.

The defendants were husband and wife, and by separate answers denied that the testatrix was entitled to the possession of the property, and set up an agreement by parol whereby the testatrix agreed among other things that the property sought to be recovered should be put in defendants' house, and remain there during the lifetime of testatrix, and at her death should become the property of the defendant Mrs. Piffard, and to leave to her by will real estate in New York city or cash or securities of the value of such real property, alleging breach by testatrix of the agreement and damages. The plaintiff replied to this defense denying the agreement alleged, setting up the agreement she claimed was made, a breach thereof by Mrs. Piffard, etc. The reply was served in October, 1906. Testatrix died in October, 1907. Plaintiff was substituted in June, 1908, and the trial was had, as stated above, in May, 1909.

First. As to the question raised under section 829 of the Code of Civil Procedure. After issue was joined, and, of course, before the death of the testatrix, she being an invalid and liable not to be able to attend the trial, her evidence was taken out of court. Upon the trial the plaintiff read from her deposition so taken evidence that she delivered the personal property sought to be recovered at the residence of the defendants about June, 1898-1899 ; that the property had, theretofore, been in her, testatrix's, possession for about fifteen years and she was the owner thereof when delivered to defendants, and had been for a long time prior thereto; that she demanded it of the defendants in the fall of 1903, before this action was commenced; that they refused to deliver it to her; that at the time of refusal by defendants to deliver property to her, as requested, testatrix had never parted with the ownership of the same, nor mortgaged nor sold it; that it was removed to the residence of defendants from testatrix's home, where it had been used as furnishing therefor.

The plaintiff then rested, and the defendants were called as wit

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nesses and testified to the defense set up by tliein in their answer, to the parol agreement with reference to the personal property and the real property in New York city. All their evidence was given under objection by plaintiff to its competency under section 829 of the Code of Civil Procedure. The defendants claimed that by the introduction of the evidence of the testatrix from the deposition the plaintiff had opened the door and rendered the evidence of the defendants as to the various interviews with her with reference to the alleged parol agreement competent and proper.

It seems to me that the door was opened by plaintiff sufficiently to admit this evidence of the defendants. The testatrix, in her deposition, had testified that she delivered the property to the defendants; that she was then the owner of it, had been in possession of it for fifteen years; that at the time she demanded it of defendants she had never parted with the ownership of it nor mortgaged nor sold it. She had alleged in her reply that she delivered the property to the defendants under an agreement, and this evidence was equivalent to saying that in none of the transactions between herself and the defendants with reference thereto was any disposition made of the property to them. It was not the case of a single interview being sworn to by a testatrix. It was saying that at no interview at any time had she disposed of any interest in the property to the defendants. If she had testified to a single interview, the evidence of defendants would necessarily have been confined to that one, and evidence as to others have been inadmissible. (Martin v. Tlillen, 142 N. Y. 140; Rogers v. Rogers, 153 id. 343, and cases therein referred to.)

Nay v. Curley (113 N. Y. 575) was an action by administrators to recover a loan made defendant by their intestate. The plaintiffs gave in evidence a check made by and delivered to defendant by the intestate payable to his order, indorsed by him, and upon which he had received the money. This was claimed to have constituted the loan. The presumption from this evidence would have been that the check was given in payment of a debt, and not as a loan. (Koehkr v. Adler, 78 N. Y. 287; Poucher v. Scott, 98 id. 422.) In order to avoid this presumption the plaintiffs called the defendant as their witness and asked him if at the time he received the check the intestate owed him anything, to which he answered no. App. Div.] Fourth Department, March, 1910.

A prima facie case of a loan was then made out. There was no presumption that the delivery of the check was a gift. (Grey v. Grey, 47 N. Y. 552.) The plaintiffs upon this proof rested their case. The defendant was then called as a witness for himself and asked what took place between the intestate and himself when the check was delivered. An objection was made under section 829 of the Code of Civil Procedure and this evidence was excluded. The Court of Appeals held that while the defendant was not permitted to give the evidence unless the plaintiffs had opened the door, yet by their examination of defendant and proof that the intestate was not indebted to him, they had so opened the door. It will be seen that plaintiffs' proof did not directly show any personal transaction between the parties. It merely rebutted the presumption as to the nature of the transaction which existed before defendant's statement as to indebtedness was made. The court held that by giving this proof the plaintiffs in effect gave proof as to the transaction between the parties when the check was given and opened the way to defendant to testify to what that full transaction was; that the plaintiffs by giving the proofs they did showed that the transaction was not a payment of debt, but by eliminating this element characterized the transaction as a loan; that the form of the question did not matter inasmuch as it in substance called for an affirmance or negation as to the character of the transaction.

In this case the property was concededly delivered by the intestate to the defendants under some agreement, by parol, made between the parties. By the issue raised in the pleadings the question was raised as to the nature of that agreement. The plaintiff proved by the evidence of the testatrix that she had never in any way parted with the ownership of the property, never mortgaged nor sold it. In giving this evidence she characterized the transactions between herself and the defendants in which the parol agreement was made, and by so doing the door was opened to the defendants to testify fnlly to the nature of such transactions. The same principle seems to be here involved that was decided in Nay v. Curley {supra). This agreement was made, not in a single transaction between the parties, but in a series of transactions, and the evidence of the plaintiff, being as it was general, related to all the various transactions and opened the way to defendants to give evidence as to all of them.

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