#### Jacob H. Conklin *et*al., Trustees, Appl’ts, *v.*Garrett Z. Snider, Exr., Impleaded, etc., Resp’t.1

*(Court of Appeals,*

*Filed January*18, 1887.)

1. Practice — Appeal — StiptoatioN for judgment absolute.

On an appeal from a judgment entered on a referee’s report the general term reversed the judgment and ordered a new trial because of the admission of incompetent evidence. An appeal from this order was taken, and the required stipulation to allow judgment absolute on this order being affirmed, was given. The Court of Appeals held the evidence competent, but that as to certain land included in the judgment the evidence was not sufficiently definite, and that therefore the general term order was not erroneous, but *Held,*that this order having been a proper one this court cannot reverse, but must affirm it, and that the plaintiff’s stipulation on appeal to said court compels an award of judgment absolute against them, although the court can see that plaintiffs might have been entitled to a part of their relief. (Por exception, see case.)

2. Same — Affirming conditionally — Discretionary with General Term.

That although the General Term might have made an alternative order permitting the plaintiffs to limit their judgment to certain of the lands (concerning which there was sufficient proof), and on their stipulating so to do, affirming the-judgment as modified, it was a matter of discretion, and it was not error instead to award a new trial.

■3. Evidence — When competent — Code Civ. Pro., § 829.

In an action brought by a trustee against the executor of his co-trustee to have lands standing in the name of said deceased trustee’s name declared part of the trust estate. One who had been brother-in-law of the deceased trustee, who was not personally interested in the trust estate, but whose children were, was examined as a witness concerning conversations had with the deceased. *Held,*that he was a competent witness.

Appeal from an order of tbe supreme court general term second department reversing a judgment of the Kings county special term in favor of the plaintiffs entered on the report of a referee.

This action was brought for an accounting against the executors of one Edward J. Straut, deceased, and to have certain lands conveyed to the said Edward J. Straut declared to be part of the trust estate created by the will of Jacob Straut, deceased, of which estate the said Edward was trustee previous to his death. The case was tried before a referee, who allowed one John Cooper, a party defendant, to testify in behalf of the plaintiffs, after objection and exception duly taken by defendant to certain conversations had with the said Edward J. Straut relative to the lands in question. John Cooper had married Hannah Straut who was the half-sister of Edward J. Straut and a beneficiary under the will of Jacob Straut. There were several children issue of this marriage who claimed an interest in the trust estate. Mrs. Cooper, their mother, died intermediarte the commencement of the action and the trial.

*Wm. J. Hardy,*for applt’s; *Irving Browne,*for resp’t.

1

 Affirming 36 Hun, 642*mem.*

*557Finch. J.

While we do not agree with all the reasons given by the general term for its order of reversal and award of a new trial, we feel bound to affirm that order. The action was brought to reclaim for a trust-estate several groups of real property, alleged to have been purchased by the trustee in his own name, as an individual, but with the trust funds. The referee found in favor of the plaintiffs, determining-that all the lands described in the complaint belonged to the trust. On appeal, the general term reversed the judgment, assigning as reasons that the testimony of one of the parties to personal conversations with a deceased testator was improperly admitted, and that the trust funds were not satisfactorily traced by the evidence into any of the lands referred to. We think the testimony of Cooper was not offered or given in his own behalf, and was admissible, and that the evidence very fully and fairly demonstrated that a portion of the lands, known in the case as the “ Brooklyn property,” did belong to the trust-estate, but that, as to the rest of the property, the proof fell far short of the certainty and definiteness required. It is not needful to explain the grounds of our opinion, so far as it differs from that of the general term, because, if that of the latter had been identical with our own, it would still have been the duty of the court to have reversed the judgment of the referee, and awarded a new trial for the error committed as to the property other than the Brooklyn lands. We cannot say, therefore, that the order of the general term was erroneous. ' Possibly it might have made an alternative order, permitting the plaintiffs to limit their judgment to the Brooklyn lands, and, on their stipulating so to do, affirming the judgment as modified; but that was matter of discretion, and it was not error instead to award a new trial.

The defeated plaintiffs were beaten for lack of evidence, and were entitled to an opportunity to strengthen their case in any of its parts, for the decision left a recovery by them possible. The order of the general term having been a proper one, we cannot reverse, but must affirm it, and the plaintiff’s stipulation on the appeal to this court compels an award of judgment absolute against them. We have once or twice, in cases where the error which might have justified a reversal was merely incidental, capable of accurate correction, modified the judgment by correcting the error, but those were instances in which we thought a new trial ought not to have been awarded, (*Wright*v. Nostrand, 98 N. Y., 689,) since there could be no recovery for what had been erroneously allowed. Here such a recovery was possible, and the award of a new trial Avas a proper order for the general term to make, and we must affirm it, and order judgment absolute, although we can see that plaintiffs might have been entitled to a part of their relief. *Gray*v. *Board of Sup’rs,*93 N.Y., *608; Thomas*v. *New York Life Ins. Co.,*99 N. *558Y., 250; *Godfrey*v. Moser, 66 N. Y. 250. They chose to take the peril of their stipulation.

Order of the general term affirmed, and judgment absolute •directed against plaintiffs.

(All concur.)