21 Barb. 161 | N.Y. Sup. Ct. | 1855
The first objection raised by the appellant is, that Draper, the plaintiff’s assignor, was improperly admitted to testify as a witness upon the trial. The decisions upon this question have been conflicting, but we are of opinion that he was a competent witness. The suit was not for his immediate benefit. It is true that a recovery would
The action is for the more immediate benefit of the cestuis que trust. And yet I do not see how they could be excluded, since the decision of the court of appeals in Montgomery Co. Bank v. Marsh, (3 Seld. 481.) The assignor of a demand as a collateral security for the payment of his own debt, was always, prior to the code, a competent witness in an action by the assignee, upon the execution of.a release. (Artcher v. Zeh, 5 Hill, 200.) The interest of an assignor in such an action is nearly, if not entirely, identical with that of the assignor in this. If before the code he would have been rendered competent by a release, he is now without it, by force of the statute.
The next question is, whether the declarations or admissions of the assignor, made before the assignment, should have been received as evidence upon the trial. They were offered by the defendant and excluded, and in this I think the referee was right. The rule here is well settled, that the declarations of the owner of a chose in action are not admissible to affect the rights of one subsequently deriving title from him. (Paige v. Cagwin, 7 Hill, 361. Stark v. Boswell, 6 id. 405. Beach v. Wise, 1 id. 612. Whitaker v. Brown, 8 Wend. 490. Kent v. Walton, 7 id. 256.) The rule is different in several of the sister states and perhaps in England. But the rule as established here, seems to me to rest upon the most solid foundations of reason, policy and justice. The assignor being himself a competent witness, and not a party, his declarations are mere hearsay, and upon that ground should never be allowed. Evidence of what a party has said, although competent from the necessity of the case, has always been justly regarded as the most uncertain and unreliable of all evidence, and it would be impossible to afford any reasonable protection to the rights of assignees if the mere hearsay of the assignor were allowed to have the force of admissions by a party to the action. I concede
The next question is, was this demand barred by the stat
It is also contended, on behalf of the appellants, that Draper has never paid this debt, inasmuch as the mortgage upon the farm was not foreclosed until after his right and title to the premises mortgaged had been sold upon judgment and execution against him. The argument is, that at the time of the foreclosure Draper had no right or title to the premises, and that neither his property nor his money has been applied to
The points were all properly disposed of by the referee, and the judgment must be affirmed.
Welles, Selden and Johnson, Justices.]