Opinion
November Term, 1897.
Judgment affirmed, with costs.
To prove the issues made by the pleadings, the burden was upon the plaintiff, and from the summary of the testimony it will be seen that there was no such preponderance of evidence as would justify our disturbing the findings of the trial court, which were adverse to the plaintiff. Not only did the court have the witnesses before it, and from their demeanor upon the stand and manner of testifying could determine their relative credibility, but, considering the fact that the property belonged originally to the defendant's father, the inference arising therefrom supports the defendant's contention that the gift to the plaintiff, her husband, though absolute in form, was not intended exclusively for his benefit, but that she was to derive equal advantage from it. To this must be added the conduct of the parties in dealing with the property and the mortgage that was taken back upon the sale to third parties, which, so far as it tends to corroborate either, supports the version of the transaction as given by the defendant. Upon the clear cut questions of fact which arose upon the testimony of the plaintiff and the defendant, it cannot be concluded that the trial court erred in holding in effect that the plaintiff did not sustain the burden of proof, and that there was not sufficient evidence to sustain the finding in favor of the defendant. There are several exceptions presented, the principal ones of which relate to rulings upon evidence growing out of the right accorded to the defendant of testifying to conversations and communications with her father, the plaintiff being present, as to the object and purpose for which the original conveyance of the property was made to the plaintiff. Such evidence, it is claimed, was in violation of section 829 of the Code of Civil Procedure. Apart from its appearing that such testimony was as to conversations with the defendant's father while the plaintiff was present, the right to introduce it was given to the defendant by reason of the fact that the plaintiff himself opened the door for the introduction of similar evidence as to the person from whom and the manner in which he had secured the property out of which this controversy has arisen. As we can find no valid ground for disturbing the decision made below, the judgment entered thereon should be affirmed, with costs. Van Brunt P.J., Rumsey and Patterson, JJ., concurred.
I concur in the affirmance of this judgment. The action was not to recover the possession of property conveyed by the defendant's father to the plaintiff, but to recover from the defendant a portion of the proceeds of certain property which, under an arrangement between the plaintiff and the defendant, had been paid to the defendant when the property was sold. It is conceded that the legal title to the property had vested in the plaintiff by the conveyance from the defendant's father. The question as to the right of the plaintiff to recover from the defendant the portion of the proceeds of the sale of the property which he had given to her at the time of the sale must be determined by the circumstances existing when the property was sold and the money paid to defendant. Neither the plaintiff nor the defendant, therefore, derived his or her title to or interest in this money through a deceased person. There is, however, another reason why the objection to the defendant's evidence of the declaration of her father was not well taken because it appears that the witness was only asked to say what took place between the plaintiff and the defendant's father after the plaintiff came into the room. In answer to that, the defendant testified merely to what the father said to the plaintiff. The question objected to was as to what took place in the plaintiff's presence; and that question was not objectionable unless it involved a personal transaction with the defendant. If there was any testimony which afterwards came in and which would come within the condemnation of the section of the Code cited, the plaintiff should have called attention to it, and either specifically objected to it or moved to have it stricken out. The story as told by the defendant was much more probable than that told by the plaintiff. The burden of proof was upon the plaintiff to establish his right to this money by a preponderance of evidence; and the court below having decided in favor of the defendant, we would certainly not be justified in disturbing the decision. The judgment is affirmed, with costs.