O'Reilly v. Adams

148 N.Y.S. 441 | N.Y. App. Div. | 1914

Woodward, J.:

The Rondout Savings Bank is the only appellant from the judgment. The cause of action alleged in the complaint is that the plaintiff is receiver in supplementary proceedings under a judgment recovered by one Casper Michels against the defendant James McCord in the sum of $397.55; that the judgment was assigned to one John D. Eckert; that from July, 1902, until June, 1910, the judgment debtor, James McCord, had on deposit in the Rondout Savings Bank $400, which he refused to pay to the plaintiff as receiver as aforesaid after demand. The defendant Rondout Savings Bank denies that James McCord at any time, as in the complaint stated, had on deposit in said bank the sum of $400, or any part thereof, and alleges that the deposit was made by his wife, Maria McCord, in her name; that it washer money, and, although she changed the account to a joint account in her name and James McCord’s name, and again changed it carrying it in his name, that said account was the account of Maria McCord at all times; that the pass book never came into the possession of James McCord and never left her possession and control, and that said account was closed in June, 1910, by the payment of the moneys due thereon to Maria McCord.

There can be no doubt that there is evidence in the case from which the court was justified in finding that the deposit in question, while originally made in the name of Maria McCord, was in fact made from moneys earned by James McCord, and that the various shifts in the account were made for the purpose of defeating judgments and delaying creditors, and that the payment of the fund to Maria McCord was done without regard to the true ownership of the same, which, at that time, was vested in the receiver. The only question requiring any serious consideration is suggested in connection with certain matters admitted in evidence after the death of Maria McCord.

It seems that Maria McCord was sworn in.supplementary proceedings taken by John D. Eckert, as a judgment creditor, she being the judgment debtor, and that she at that time swore that she had no,money in the Rondout Savings Bank, and that the money she had there at one time belonged to her husband and children. The defendant bank was not a party to that proceeding, and when the testimony was offered in the present action its attorney objected “to the testimony given by Maria McCord in the case of John D. Eckert against Maria McCord,” with no suggestion that it be limited to the defendant James McCord, as administrator of the estate of Maria McCord; and it is now urged that this is reversible error. The record in a prior proceeding, in which Maria McCord was a witness, was clearly competent as against her estate, and the court was not called upon to exclude the testimony upon a mere general objection, where it was competent as against one of the parties. (Fox v. Erbe, 100 App. Div. 343, 347.) The subsequent objection to the same line of evidence, after its admission, with no motion to strike out, or to limit the same, does not call for a reversal in this court.

The judgment appealed from should be affirmed, with costs.

Judgment unanimously affirmed, with costs.