34 N.Y.S. 870 | N.Y. Sup. Ct. | 1895
Daniel B. Ketchum, being an agent of an insurance company, gave his bond to said company, with Austin H. W1 Holden and William Mallory as sureties, for the faithful performance of Ketchum as agent. In December, 1884, Holden, one of the sureties, was notified by the insurance company that Ketchum, the agent, was short in his accounts, in an amount not definitely known, but supposed to be about $350. On the 17th of December, 1884, the plaintiff executed and delivered to Holden -her bond, and also a mortgage collateral thereto on property owned by her in the vilvage of Glens Falls, for the sum of $350. The bond and mortgage were given to secure Holden against his liability as surety on Ketchum’s bond to the insurance company. The business was
From the evidence in the case, the referee’s finding of facts seems to be fully sustained. On the trial, some objections were taken to evidence offered, on the part of the respondent Daniel A. Wilson, who assumed to act as agent for Holden in obtaining the mortgage, was called by the respondent, and" was asked to narrate a conversation between him and Holden. This was objected to by the appellant, on the ground that his testimony was inadmissible, under section 829 of the Code. We see no force in that objection. Wilson was not a party to the action; nor does it appear that he was interested in
It is also insisted that the referee erred in refusing to strike out that portion of the testimony of the respondent wherein she states that Wilson informed her, after the death of Holden, what amount Holden had in fact paid to the insurance company, and that was the first information she had of that amount. This evidence was not objected to, but, after it was given, the appellant moved to strike it out. While technically such evidence might not have been competent, if objected to before it was given, yet, in view of the remote bearing, if any, which it could have upon the merits of this case, and the fact that the objection came too late, we do not think it such an error as would justify the reversal of this judgment.
It was also objected that the testimony of the respondent as to the .time when she first learned that Holden had paid less than the full amount of the mortgage to the insurance company was objectionable and improper, on the ground that it was indirectly testifying to a transaction or communication with Holden, or was'testifying to a nontransaction, which brought it within the prohibition of section 829 of the Code. We do not think the evidence involved any personal transactions with the deceased; nor was it that class of evidence held to be objectionable on the ground that it proves the want of a transaction with the deceased. We can see nothing in the evidence which renders it illegal,—for which the judgment should be reversed. On the whole case, we find no error committed by the referee which would authorize this court to reverse the judgment.
Judgment affirmed, with costs of this appeal against the administrator, as such, to be paid out of the estate. All concur.