#### LALLMAN et al. v. HOVEY et al.

(Supreme Court, General Term, Fifth Department.

December 28, 1895.)

1. Judgment—Action on—Evidence.

In an action on a judgment rendered in the supreme court, the introduction of a certified transcript of the entry in the clerk’s docket is insufficient to prove the relation of the parties.

2. Appeal—Objections not Raised Below.

Defendant, to avail himself of the insufficiency of evidence as to relation of parties, must raise the question on the trial.

3. Creditors’ Bill—New Parties—Summons and Complaint.

In an action by judgment creditors to set aside conveyances for fraud, the summons and complaint need not show that it is brought in behalf of all judgment creditors similarly situated who may choose to come in and share in the expense and results, to enable the court to permit them to do so.

4. Appeal—Pleadings—Objections not Raised Below.

When a plaintiff has come into a ease after issue joined, the objection that he tenders no pleadings must be made in the trial court.

5. Secondary Evidence—Lost Instruments—Proop op Loss.

Where a paper is produced and identified on a trial, and, at an adjourned hearing, defendant testifies that he has not seen it since it was handed to his attorney, when first produced; that he and the attorney have searched for it among the attorney’s papers belonging to the case, and have been unable to find it; and plaintiff’s counsel admit that defendant’s counsel is unable to find the paper, and no suspicious circumstances appear in the evidence, it is error to exclude secondary evidence as to the paper’s contents.

Appeal from judgment on report of referee.

*663Action by George Lallman and Charles Palmer against Theron Hovey and Belle Hovey. There was a judgment in favor of plaintiffs, and defendants appeal.

Reversed.

Argued before BRADLEY, WARD, and ADAMS, JJ.

Edward T. Durand, for appellants.

E. O. Farrar, for respondents.

BRADLEY, J.

The defendants are husband and wife. The plaintiffs, as judgment creditors of the husband, seek to set aside, as fraudulent against his creditors, conveyances of real property and a bill of sale of personal property made by him to the other defendant. After the commencement of the action, an order of the court was made to allow William P. Sherman, another judgment creditor of the defendant Theron Hovey, to come in as a party-plaintiff. The action was founded upon an alleged judgment recovered in justice’s court by the original plaintiffs and docketed in the county clerk’s office. Sherman’s judgment was recovered in the supreme court. Executions upon the judgments had been returned unsatisfied. The only evidence as against the defendant Belle Hovey of the recovery of the judgment in the justice’s court was the docket of it in the county clerk’s office; and as no objection was taken to the omission to put in evidence the transcript of the justice’s judgment filed, and upon which the docket entry was made, the question whether that otherwise would have been essential is not here for consideration. Jackson v. Jones, 9 Cow. 182.

The only documentary evidence introduced to prove the recovery of a judgment by Sherman was a certified transcript of the entry in the docket book, kept for such purpose in the clerk’s office. This was insufficient to prove that he was a judgment creditor of Hovey. But as that objection was not distinctly taken, by motion or otherwise, at the trial, the question is not available to the defendants on this review. If it had been raised during the trial, it is quite likely that the requisite evidence may have been supplied.

Although it does not appear by the summons and complaint or either that the action was brought by the plaintiffs in behalf, not only of themselves, but of other judgment creditors similarly situated, who should choose to come in and share in the expenses and results, it "was legitimate for the court to make an order to permit them to do so, with the consent of the plaintiffs. Edmeston v. Lyde, 1 Paige, 637; Parmelee v. Egan, 7 Paige, 610; Claflin v. Gordon, 39 Hun, 54.

The point now made that no issue was tendered by Sherman by any pleading on his part requires no consideration, because the question was not raised at the trial.

The defendants alleged that the conveyance and bill of sale in question were made and taken in good faith, and had a valuable and adequate consideration for their support; and, on the trial, they, by their own testimony, gave evidence to the effect that one Mrs. Godsave held a mortgage made by Alexander Cully on certain real property, amounting to about $4,000; that she assigned *664the mortgage to the defendant Theron Hovey, her son, for the benefit of his wife, and with the direction that he collect the mortgage for and pay the proceeds to her; that, with the proceeds of that mortgage, she paid for the conveyances and bills of sale in question; and that the husband, at the time of such assignment, executed an instrument in writing, drawn at the dictation of Mrs. Godsave. This instrument, early in the trial, and before the plaintiffs rested, was produced and identified by the defendant Belle Hovey, on her cross-examination, by the defendants’ counsel. After this, and before the plaintiffs had put in all their evidence in chief, the further hearing was adjourned for about two months, when the trial was resumed; and, after the defendants entered upon the defense, the defendant Theron Hovey testified that, at the time the instrument referred to was so identified, it was taken and retained by defendants’ attorney, and that he and the attorney had searched for it among the papers of the latter in the case, and they had been unable to find the instrument; and both of the defendants testified that they had not seen it since it was handed to and taken by their attorney, immediately following its identification, as before mentioned. It was admitted by the plaintiffs’ counsel that the defendants’ attorney was unable to find the paper. Thereupon the defendants offered to prove the contents of that instrument, and that they were to the effect that Theron Hovey acknowledged that the Cully mortgage was assigned to him by Mrs. Godsave for his wife, and that he agreed to collect it, and pay the proceeds to his wife. Objection on the ground that the paper was the best evidence was sustained, and the defendants excepted. Although, at common law, the evidence of a party was not admissible for other purposes, it was competent to prove by him the loss of a paper the contents of which were sought to be proved by secondary evidence; and the evidence of a party, when it embraced all the facts essential to the purpose, was deemed sufficient to prove the loss; and, while the question of the sufficiency of proof of the loss is for the court to determine, the discretion is not so broad as to fairly permit the disregard of the evidence of a party on that subject, merely because he is such. Jackson v. Frier, 16 Johns. 193; Adams v. Leland, *7*Pick. 62; Woodworth v. Barker, 1 Hill, 172; Partridge v. Badger, 25 Barb. 146, 173; Supervisors v. White, 30 Barb. 72; Bridges v. Hyatt, 2 Abb. Prac. 449; Moore v. Livingston, 14 How. Prac. 14. The evidence of loss of the paper was sufficient to warrant the proof of its contents, provided the fact of the existence of it was sufficiently shown. The execution of it by Theron Hovey was a fact to which, at common law, a person interested in the event of an action was not permitted to testify; and, although he can now do so, a less qualified discretion may be applicable to the determination by the court of the question of the existence or execution of a lost paper than can be reasonably exercised on the subject of the loss when, in terms, the evidence includes all the facts essential to prove the loss. The evidence of the defendants tended to prove the existence of the paper; and the objection to the reception of the evidence offered to prove its contents, on the ground simply *665that the instrument itself was the best evidence, would seem to import that, assuming its existence, the loss of it was not sufficiently proven to render the evidence of its contents admissible. On the subject of the loss of the paper and inability of the defendants to produce it, no suspicious circumstances seem to appear in the evidence; and whatever there may hav.e been of suspicion arising from the evidence and the circumstances appearing on the trial as to the instrument had relation to its purpose, and the effect for which it was intended, and whether in fact it represented a bona fide transaction.

Those were questions to be disposed of by the referee in the con- ' sideration of the case upon the merits. Then the credibility of the evidence of the defendants, in view of their interest in the event, would properly be a matter for his determination. It may be that the result would have been the same if the evidence of the contents of the paper had been received; but, as that cannot necessarily be assumed on this review, the error in excluding the evidence upon the objection taken cannot be disregarded.

The judgment should therefore be'reversed, and a new trial granted; costs to this appeal to abide the final award of costs. All concur.