85 N.Y.S. 275 | N.Y. App. Div. | 1903
Lead Opinion
This action has been tried twice. The details of the controversy between the parties are so fully stated in former opinions of this court (Matter of Lexington Avenue, No. 1, 30 App. Div. 602; Matter of Lexington Avenue, No. 2, 30 App. Div. 609 ; Deering v. Schreyer, 58 App. Div. 322) that it is only necessary now to refer to them generally in connection with the contested issue of fact arising upon the second trial.
The plaintiff, an attorney at law, and the defendant Schreyer entered into an agreement by which the latter retained the former to render professional services in obtaining compensation for loss and damage sustained or which might be sustained by Schreyer for land taken from him in a proceeding for the opening of Lexington ave
No question arises on this appeal as to taxes. As to the mortgage the defendants Schreyer and Fields claimed that it was a valid outstanding incumbrance on the land taken in the street opening proceeding, and that it had been such from the date at which the defendant Schreyer acquired the property by purchase from his grantor Molloy, which was in the year 1884. The premises were then subject to a mortgage for $6,000, held by one John Ross. On November 6, 1884, Ross assigned it to Stephen H. Martling, a son-in-law of Schreyer, and Schreyer is said to have guaranteed payment of the same. In October, 1888, Schreyer paid $2,000 on account of the mortgage; in May, 1899, he paid to one A. H. Wagner, the attorney for Martling, a balance of $4,000, and the mortgage was assigned by Martling at Schreyer’s request to the defendant Fields, who was also a son-in-law of Schreyer. The
The aspect in which the case would be (and was) presented on the new trial was considered in the opinion of the Court of Appeals. The plaintiff, by the terms of his agreement with Schreyer, was entitled to recover only one-half of so much of the award as was made to Schreyer for his interest in the land taken, and that was to be determined after the deduction of the mortgage, if it were a lien, and also if Schreyer were under no personal obligation to pay it. The plaintiff contended that" the mortgage had been paid and was kept alive by pretended assignments and that Schreyer had assumed payment, and that, “ although kept alive in form * * * it had no substance and was in fact no lien.” The evidence in the record before the Court of Appeals was not sufficient to justify a finding in favor of the plaintiff on those issues, and the court remarked that “ the issues as to the assumption of the mortgage by Schreyer, the payment thereof by him and its assignment for an ulterior purpose, although tendered by the complaint and met by the answer, were neither tried nor determined, for the trial justice regarded them as immaterial. Those issues can be disposed of upon the new trial which.we deem it our duty.to order,” etc. (171 N. Y. 451.)
The view of the evidence entertained by the court below was that, as matter of fact, Schreyer had guaranteed the mortgage so that he became personally liable for the amount thereof, and that he did pay the same before his retainer of the plaintiff; from which it would necessarily follow that Schreyer received the benefit of the whole award made by the commissioners and the plaintiff would be entitled to one-half thereof under his contract. There is abundant evidence to sustain what may be called the finding of the court at Special Term with respect to Schreyer’s acts in connection with this mortgage and his relation thereto &emdash; if all evidence upon which that finding is based were competent and admissible. In the street opening proceedings Schreyer made affidavits in which are contained statements respecting the mortgage, which, unexplained, indicate that the mortgage was guaranteed by him and was paid by him and was transferred merely by colorable assignments, at his procurement. In an affidavit made in February, 1891, he says: “ I was compelled to pay the mortgagee the amount of said mortgage, $6,000, and instead of having the same discharged of record owing to the still outstanding claim on my part to compensation against the city, and for reasons connected therewith, an assignment thereof on said payment was made to my son-in-law, Mr. Fields.” In an affidavit sworn to on October 24, 1890, he says ; “ The said parcel of land belongs to me absolutely. The said premises were subject to a mortgage of $6,000, which, since the consummation
The impression derived from the whole of Schreyer’s evidence is, that while the amount of the mortgage of $6,000 was paid by him, yet it was so paid with borrowed money (ultimately received from the defendant Fields), and that although the original mortgagee, Ross was, actually paid the amount of the mortgage, yet it was kept alive by transfer in order to secure those who loaned the money." The testimony of the defendant Fields, although unsatisfactory in many respects, tends to show that he loaned money to Schreyer in order to pay Martling, the first assignee of the mortgage from Ross. All of this testimony is important, because by the judgment from which the appeal is taken it is determined that the defendant Fields, at the time of the confirmation of the award, had not and has not now any actual^ or real interest in the award as assignee of the mortgage.
If the proof on the subject had stopped here and the court had found in favor of the plaintiff, rejecting the testimony of Schreyer and Fields as unworthy of belief, we might have found no difficulty in sustaining the judgment; but the plaintiff was allowed to introduce evidence which may have been, and in its nature must have
The objection to the allowance of the evidence of the deceased witness in this case is placed upon the ground that there never was a judicial proceeding in which it was competent to take the testimony of Mr. Wagner; that the special proceeding in which he was examined as a witness was no proceeding at all, in a legal or judicial sense, because it has been determined that the court had no jurisdiction whatever to entertain that proceeding, and that, from beginning to end, it and everything connected with it was absolutely void. Such was in fact the determination of this court, affirmed by the Court of Appeals (Matter of Lexington Avenue, No. 1, 30 App. Div. 602 .;. 157 N. Y. 678). At the hearing of that proceeding; Sehreyer specifically took objection to the court inquiring into any matter before the referee, save as to taxes, on the ground that the claim of Deering should be determined in an action and not in a special proceeding upon a reference. This court held that that objection should have been sustained, and that the court had no power or jurisdiction, as distinguished from power, to entertain the proceeding. The language of the opinion is: “ When the proceedings were commenced the court was Without jurisdiction in the special proceeding to direct the city to pay either Sehreyer or the petitioner the amount of this award;” and “we know of no case in which the'court has entertained such a proceeding summarily to require a client to pay to an attorney the amount that the attorney claims is due to him from his client for services rendered.” “ Sehreyer had a right to have that question (of the attorney’s lien) determined by the methods
Without considering whether the subject-matter of the special proceeding and of this action is the same, the question arises, whether, when testimony is taken in an action or proceeding in which the court has no jurisdiction whatever to adjudge as to the subject-matter, that testimony, the witness giving it being dead, can be used in another and entirely independent action or proceeding of which the court has jurisdiction. As. the Code of Civil Procedure has made no absolutely new rule in this regard, but only, in one direction, extended and amplified an old one, its provision, while it may be liberally construed, cannot be regarded as altering fundamental conditions upon which the exception to the rule as to hearsay evidence was applied. The ground upon which the exception stands is that in an authorized action or proceeding testimony .given under the solemnity of an oath, where the witness was or might have been cross-examined, the probabilities of the truth having been told are so great as to justify the resort to that testimony when the witness has died or become insane since the former trial. As stated by Greenleaf (supra), the evidence is admitted where it was given under oath in a judicial proceeding in which the adverse litigant was a party, and where he had the power to cross-examine and was legally called upon so to do. If is immaterial to the admission of the evidence whether the party actually cross-examined or did not .cross-examine, if he were bound so to do. (Bradley v. Mirick, 91 N. Y. 293.) The exception must have general application. It cannot depend upon whether the party has examined or cross-examined the witness, if the court had no jurisdiction to entertain the action or proceeding in which the testimony was given. A party summoned to answer in an action or proceeding in which the court has no jurisdiction, has the legal right to take his objection to jurisdiction and pay no further attention to that action or proceeding. He may stand upon his legal rights. He is not bound to cross-examine. He is not “ legally called upon so to do.” We are not able to perceive that, if he takes the objection to jurisdiction and then cross-
We are of opinion that the provision of the Code under consideration applies only to the testimony of a deceased or insane witness taken in an action or proceeding of which the court had jurisdiction, and that that provision is not to be extended by judicial legislation. If it applies to a case in which a party has cross-examined the deceased witness, it would apply equally to a case in which a party did not cross-examine a witness, even when he was under no obligation and was not legally called upon so to do, if he had an opportunity to Cross-examine. We think the testimony of Hr. Wagner was incompetent, and as it may have had a direct influence Upon the mind of the trial judge in his determination of the cause,, the judgment must be reversed and a new trial ordered, with costs to appellants to abide the event.
Van Brunt, P. J., Hatch and Laughlin, JJ., concurred.
Sic.
Concurrence Opinion
I concur with Hr. Justice Patterson and I also think the allowance of interest was not justified. The fund was in court, and the plaintiff is not entitled to interest on the amount due him, except such interest as has been earned by the fund in court. The defendant has received no part of the award, except the amount paid to Field, and to that amount he was entitled. The question as to who was entitled to the balance in the hands of the city and afterwards paid into court was the question involved and it was error to charge the defendant interest on the amount deposited in court the title to which was to be determined by the judgment.
Judgment reversed and new trial ordered, with costs to appellants to abide event.