Opinion
Argued January 13th, 1870
Decided March 24th, 1870
Samuel Hand ( Charles L. Spielthorn with him), for the appellant.
Hooper C. Van Vorst, for the respondent.
The counsel for the appellant insists that the defendant having taken the property as public administrator of the city of New York in good faith, believing that it was the property of the intestate at the time of his death, no action will lie personally against him therefor, although the property was the plaintiff's, and not that of the intestate. In this the counsel is mistaken. Section 3 of the act (2d Statutes at large, 123) prescribing the powers and duties of the public administrator, in this respect only authorizes him to take the goods of the intestate. Section 42, page 131, making the corporation of the city liable for the application of all moneys received by the public administrator, according to law, and for the due and faithful execution of all the duties of office, confers no power upon him to seize and detain the goods of others in which the deceased had no interest. It follows that, if the goods in question were, as claimed, the property of the plaintiff, the action for detaining them from him was well brought against the defendant personally. The complaint contains all the allegations necessary to maintain the action. It alleges that the defendant had become possessed of and wrongfully withheld from the plaintiff the following goods, c., describing them, and concludes with a demand of judgment for their delivery to the plaintiff, and for damages for their detention. The judgment rendered is in accordance with the complaint. It is further insisted by the counsel for the appellant that the complaint charging an unlawful detention only, the action cannot be maintained upon proof of an unlawful taking. However this may be, the question does not arise in the present case. There was proof given tending to show a demand of the property by the plaintiff of the defendant after the taking and before the commencement of the action and a refusal to deliver the same. The referee has found that such demand and refusal was made. The counsel for the appellant also insists that there was no evidence showing that the property recovered was the same as that mortgaged by the intestate to the plaintiff. In this the counsel is mistaken. The testimony of the plaintiff, corroborated by other witnesses, was sufficient to warrant the finding of the identity of the property in suit with that mortgaged by the intestate to the plaintiff. The defendant having shown that he acted as public administrator in taking the property, and that subsequently he was appointed administrator of the mortgagor, had the right to show that the mortgage was fraudulent as against the creditors of the mortgagor (chap. 314, sec. 122, Laws of 1858). The evidence tended to show, and the referee has found that the mortgage was given in good faith for the purpose of securing the payment of a debt owing by the intestate to the plaintiff. There was evidence given in support of this finding. These facts must, therefore, be assumed as true by this court. This is an answer to this branch of the defence. The omission of the plaintiff to file a statement of his interest in the property, the mortgage, as required by statute, to preserve his lien against the creditors of the mortgagor, was obviated by the proof showing that the plaintiff took possession of the property by virtue of his mortgage in the lifetime of the intestate and before any lien of any creditor had attached, and that he retained such possession until the property was taken from him by the defendant. The testimony of the plaintiff as to the transactions between him and the intestate was not competent evidence against the defendant, and had such testimony been properly objected and excepted to, its admission would have been erroneous; but there was no ground assigned for the objection. It is the well settled law that objections to testimony without assigning any ground therefor will be disregarded, unless it clearly appears that the objection, if properly made, would have been decisive of the case, and could not have been obviated. It does not so appear in the present case. After the plaintiff had been examined and cross-examined by the appellant in regard to such transactions, the counsel for the appellant moved to strike out the testimony. This motion was denied by the referee, to which an exception was taken. It is entirely clear that a party who has sat by during the reception of incompetent evidence without properly objecting thereto, and thus taken his chance of advantage to be derived by him therefrom, has not, when he finds such evidence prejudicial to him, a legal right to require the same to be stricken out. The denial of the motion was not, therefore, any ground of exception. I have examined the other exceptions to the rulings of the referee upon the competency of evidence and think none of them well taken. The judgment appealed from must be affirmed with costs.
SMITH, J., also read an opinion for affirmance.
All concur except SUTHERLAND, J., who did not vote.
Judgment affirmed.