Opinion
December 30, 1953.
Present — Nolan, P.J., Adel, Wenzel, MacCrate and Beldock, JJ.
In a proceeding instituted to examine appellant's books, an order was made on June 15, 1953, resettling a final order made on May 26, 1953, both adjudging that the petitioner's testator was the actual owner of 100 shares of appellant's preferred stock and directing the production of its books for examination by the petitioner, following an intermediate order dated December 24, 1951, denying his application unless he first submit to a trial to determine the actual ownership of said shares of stock. The appeals are from the orders of May 26, 1953, and June 15, 1953, and bring up for review thereunder the intermediate order of December 24, 1951. Orders of June 15, 1953, and December 24, 1951, unanimously affirmed, with one bill of $50 costs and disbursements. Appeal from order of May 26, 1953, dismissed, without costs. The examination shall proceed in the manner and at the place indicated in the order of June 15, 1953, on the first Monday following the expiration of ten days after the entry of the order hereon. The evidence warranted the determination by Special Term that the transaction in question was one involving an investment in the stock of the corporation rather than a loan. There was no error in rulings by the court in its exclusion of testimony. While section 347 of the Civil Practice Act was in some instances not a proper ground on which to exclude testimony, nevertheless, the proferred testimony was properly excluded either because (1) admissions by one of two or more executors are not binding on the estate ( Church v. Howard, 79 N.Y. 415; Richardson on Evidence [4th ed.], § 375); or (2) a person is not bound by admissions of another whose authority to make admissions is not established, or the scope of whose agency does not permit him to make admissions ( Lewis v. Duane, 141 N.Y. 302, 313).