Opinion
June Term, 1903.
G.R. Adams, for the appellant.
Chandler A. Oakes, for the respondent.
The question as to whether Abram H. Van Gaasbeek was mentally competent to execute the assignment of the bond and mortgage at the time he executed it was a question of fact to be determined in the case and was properly submitted to the jury and the evidence was abundant to support the verdict that he was not.
It is strongly urged by the appellant's counsel that there was no evidence to justify the submission of the other question to the jury, as to whether or not Abram was the owner of the bond and mortgage at the time he assigned the same to Stephen, the claim being, first, that there was no evidence of a delivery of the bond and mortgage with the assignment thereof to Abram so as to devolve the title to the same on him, and, second, that the evidence is uncontradicted that the papers were in the possession of Richard until his death and after his death in that of his wife; that payments of principal and interest were all made to them until the assignment to Stephen and after that to him; that there was a confidential relation between father and son under which the former owned the bond and mortgage notwithstanding the record title was in the name of the son. In other words, that the son held them in trust for the benefit of the father. The only evidence to support this theory outside of that relating to payments on the bond and mortgage was given by Mrs. Staples. It is urged that as she was not directly contradicted no question of fact was presented. In Thompson v. Welde ( 10 App. Div. 125) it was said: "While it is quite true that both the court and jury are bound by the testimony of unimpeached and credible witnesses, which is uncontradicted, yet, to raise a question for the jury, it is not necessary that the testimony should be contradicted by the affirmative testimony of other witnesses. The circumstances under which the evidence is given, the relation of the witnesses to the party in whose behalf they testify, and the nature of the facts to which they testify, may be such as to not only warrant, but require, the court to send the case to the jury, although there may be no witnesses testifying upon the other side. Especially is this likely to be the case where the evidence given is evidence of declarations and admissions alleged to have been made by one who is dead, and who, therefore, cannot contradict them. Oral admissions are, at the best, but an unsatisfactory kind of evidence, and the case is a rare one in which such admissions should be adopted by the court as representing the precise truth of the case." Mrs. Staples was the wife of the appellant and evidently largely biased in his favor. She testified as to declarations of Richard and admissions of Abram after the death of both. Under such circumstances the weight to be given to her statements was clearly for the jury to determine and they had the right if they chose to reject her testimony.
The fact that the assignment to Abram was recorded was sufficient evidence to justify the jury in finding that it had been delivered to him. ( Sweetland v. Buell, 164 N.Y. 541, 552; Geissmann v. Wolf, 46 Hun, 289.) In addition to this fact there was some evidence, although not very satisfactory, that Abram had had the mortgage in his possession.
I think the two questions were properly submitted to the jury; that the evidence does not so clearly preponderate against their verdict as to justify us in disturbing it, and that the court properly adopted the verdict as part of its decision.
The appellant also urges that Abram resided in Brooklyn at the time of his death and that the surrogate of Ulster county had no jurisdiction to appoint the plaintiff his administratrix and, therefore, she cannot maintain this action. But the surrogate upon a sufficient affidavit that Abram was a resident of Ulster county at the time of his death issued letters of administration to the plaintiff. There is no allegation in the answer and no proof that they were obtained by collusion or fraud and we think they cannot be attacked collaterally in this action. (Code Civ. Proc. § 2473; O'Connor v. Huggins, 113 N.Y. 517.)
The judgment should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.