Smith v. Kirtland

60 N.Y.S. 812 | N.Y. App. Div. | 1899

Park, P. J.:

The\tion is brought to set aside as fraudulent the sale of certain propert\>,y the defendant Elvin W. Kirtland to his wife, the defendai Georgia Kirtland. For evidence of the fraud the plaintiff V0n the trial seems to have relied entirely upon the statementLf the husband, made while under examination in supplemen.y proceedings. The evidence so given by him was upon the t{ 0f this action first offered by the plaintiff as against the defend! Kirtland, and received by the referee. After being u evidence, it was specifically offered as evidence against the 6an¿]ant Georgia A. Kirtland, and received by the referee, under™, objection and exception. The plaintiff thereupon rested his casW fter moving for a nonsuit as to each of the defendants sep-vjy^ which was denied by the referee, the defendants rested with! giving any evidence. The referee subsequently rendered a decis^fismissing the complaint as against both defendants, and from thjdgment entered thereon this appeal is taken.

In his fifth finding of fact the- referee .holds that there was no proof against the defendant Georgia A. Kirtland concerning the property and sale which ¡are the subject of this action. And it is apparent that, although he admitted in evidence against the wife the declarations and testimony of the husband given in the supplementary proceedings, as .proof of the facts therein stated, yet he refused to consider them in making his decision.

Although it was clearly error to.receive such evidence as against ) the wife, nevertheless, having so received it, it was error for the/ referee to refuse to consider it. Although improperly in the casd under objection and exception, the plaintiff had the right to sun pose it would be considered as evidence properly there,, and to a/ upon that supposition. He had the right to insist that the refetb consider, as against the wife, the facts appearing from such -evidepb, and upon this appeal we are not at liberty' to disregard them. /

This proposition is squarely held in Flora v. Carbeam (38 N. Y. 111, 113), and the reasons therefor are there fully and clearly s£ed. (See, also, such case.approved in Crane v. Powell, 139 N. Y. 84.)

Considering such evidence in the case as against the wife Vcan_ not say what the decision of the referee would have beei/ It is not clear that he would have, under such circumstances, dhissed ' 'the complaint, nor that he should have so deterinined, ap therefore, a new trial must be granted. ■ /

All concurred.

Judgment reversed, referee discharged .and a new tj granted, costs to abide the event. /