#### La Fayette Rittenhouse, Resp’t, *v.*John Creveling, Ex’r, App’lt.

*(Supreme Court, General Term, Fifth Department,*

*Filed April 16, 1891.)*

1. Evidence—Bills and notes.

Evidence of want of consideration for the note in suit is inadmissible under a mere general denial.

2. Same—Proof of possession.

A witness testified that at a time prior to the making of any claim that the note in suit was forged plaintiff showed him a note which he said was the note of his father, but he could not identify the note in suit positively as being the one so shown to him. Thereafter plaintiff testified that he showed the note to the witness and that it was the identical note in suit. *Held,*that the evidence of the witness was competent to show possession by plaintiff of the note at that time, and was not objectionable as a mere declaration of the plaintiff.

3. Same—Transactions with deceased person—Code Civ. Pro., § 829.

In an action on a note brought against the personal representative of the maker, the defense introduced evidence of a conversation between plaintiff and deceased tending to show want of consideration. Plaintiff was allowed to testify, under objection that he was not competent under § 829 of the Code, that the conversation as related by the witness did not take place and to give his version of the conversations at the times referred to. *Held,*error; that the evidence was inadmissible, and that the objection was sufficiently specific.

*281Appeal from, a judgment entered in Livingston county September 15, 1890, on a verdict of a jury at the circuit.

*Charles J. Bissell,*for app’lt; *F, C.*Peck, for resp’t.

Macomber, J.

As there was no motion for a new trial made either upon the minutes of the court or at special term upon a case and exceptions, no question can be made but that the issues were decided by the jury upon sufficient evidence and that their conclusion upon the facts cannot be disturbed

There are, however, exceptions to the reception and rejection of the evidence and to certain portions of the charge of the court to the jury which are relied upon by counsel for appellant as sufficient to require a reversal of the judgment.

The action is upon a promissory note alleged to have been made by the defendant's intestate, one Alanson Rittenhouse, August 10, 1882, payable two years thereafter to the. plaintiff or bearer, with interest. The answer of the defendant put in issue the execution and delivery of the note to the plaintiff.

The first material objection made to the exclusion of evidence arises upon the offer of the defendant to prove that the note was without consideration. This was objected to upon the ground that it was inadmissible under the pleadings, and the court sustained the objection, to which ruling the defendant excepted. This ruling was, as the pleading stood, clearly correct. The note itself by its language imported a consideration, and a mere general denial was not sufficient to admit proof of evidence defeating the presumption of law arising from a production in evidence of the note itself. Such was the rule held in *Eldridge*v. Mather, 2 N. Y., 157; also, *Dubois*v. Hermanee, 56 id., 673; *Springer*v. Dwyer, 50 id., 19. But this proposition is of less importance than it would be had not the court in fact, upon application by the defendant, permitted an amendment setting up a want of consideration. No evidence of this character, after the amendment was permitted to be made, was excluded. The defendant, therefore, is not in position to allege any prejudice against his rights by reason of the rulings of the learned trial judge in this respect.

Another exception arises upon the evidence of Mr. Vanderlip, to the effect that in the spring of 1888 he bad been shown by the plaintiff a note which purported to be the promissory note in suit, and that the plaintiff said it was the note of his father. This witness was quite indistinct in his recollection in regard to the transaction, and could not identify the note in suit as being positively the one which was shown to him by the plaintiff. This evidence was given out of its order in the case, but no objection was made thereto upon that ground. The plaintiff was subsequently permitted to testify, without objection, that he did show, at about the time mentioned by Mr. Vanderlip, this note to that witness, and that it was the identical note here in suit Counsel for defendant moved to strike out the evidence of Mr. Vanderlip, but the motion was based solely upon the ground that it did not appear from any such evidence that the note in question was produced at that *282time by the witness. This motion was wholly unavailing because the point which was sought to be established by the evidence was the possession by the plaintiff of the note at that time, and the evidence, such as it was, was for the consideration of the jury. When the evidence itself was offered, the objection made to it was upon the ground that it was a mere declaration of the plaintiff’s and was not made in the presence of the defendant or of any person interested. This objection was unavailing. It was not offered or received as a declaration in any respect; but as a fact, namely, the actual possession of the note, and that too at a time before any imputation of forgery against the plaintiff had been made, and hence was *res gestee.*In this view of the case the evidence was competent.

Another objection was made to the evidence of the plaintiff touching two interviews which had been related by the witness Jane Davidson, which took place between the plaintiff and his father, the decedent, in the year 1887, in which the latter had told the plaintiff to go away and leave him, that he did not owe him one cent; and that the plaintiff at the time made no assertion that he owned or held any note against his father. This was after the amendment to the answer above referred to. This evidence was objected to,- under § 829 of the Code of Civil Procedure. The objection was overruled, and the defendant excepted.

If this objection can be avoided it can be done only through the authorities of *Ham*v. *Van*Orden, 84 N. Y., 271, and *Sanford*v. Ellithorp, 95 id., 52. The objection made, as was stated in *Ham*v. *Van*Orden, supra, was general, that the witness was not competent under § 829 of the Code. But he was not rendered incompetent for all purposes in this action, because the defendant himself had been sworn as a witness prior to this time in the trial and had given evidence from which it could be argued to the jury that his intestate did not execute the note in suit. This witness, therefore, was competent for some purposes.

The court in *Sanford*v. Ellithorp, supra, says: “ If the objection had simply been that the witness was not competent under the section referred to (§ 829), it would have been unavailing because too general. *Ham*v. *Van*Orden, 84 N. Y., 271.”

The plaintiff appears, therefore, to have been a competent witness on account of the evidence given by the defendant. Being a competent witness for some purposes, it was incumbent, in order to exclude him from giving his version of the interview with his father, as related by the witness Jane Davidson, specially to point out the objection, unless the specific objection appeared from the nature of the question propounded. The witness’ attention was called directly to a conversation testified to by Jane Davidson, and he was asked specifically if he had said to his father and his father had said to him what the witness Davidson had testified to. The objection so taken, under § 829, though general, was under the circumstances sufficiently specific. Had objection been made to the competency of the witness before any question was put, a different question would arise. But when he was asked in detail if the conversation related by Davidson had taken *283place, and he was allowed not only to deny it but give his version of the conversation at those times of a quite different character, the provisions of § 829 were violated. *Pinney v. Orth,*88 N. Y., 447, *Ward v. Plato,*23 Hun, 402; *McKenna*v. *Bolger,*37 id., 526; S. C., 49 id., 259; 17 N. Y. State Rep., 102.

This error in the admission of testimony necessarily leads to a reversal of the judgment.

There are other questions arising upon the charge of the learned trial judge which would be of interest, particularly those portions in relation to the burden of proof. But it is hardly necessary for us, under the circumstances, to express any opinion m regard thereto, further than to say, that at all times during the trial the burden was upon the plaintiff to establish affirmatively by a preponderance of the evidence that the defendant’s testator made and delivered to the plaintiff the note in question.

The judgment appealed from should be reversed and a new trial granted, with costs to abide the event

Dwight, P. J., and Corlett, J., concur.