Opinion
Argued June 20, 1888
Decided October 2, 1888
Calvin Frost for appellant.
S.W. Fullerton for respondent.
A careful scrutiny of the record satisfies us that there was sufficient evidence to warrant the essential findings of the referee, and they having been affirmed by the General Term must remain undisturbed. The facts found justified the relief granted, and it is incumbent upon us now only to consider whether there were any errors committed by the learned referee in his rulings during the progress of the trial.
The plaintiff offered in evidence the judgment-roll in an action of "Ambrose S. Murray (suing on behalf of himself and all other judgment-creditors of Robert H. Berdell who shall come in and seek relief by and contribute to the expenses of this suit) against Robert H. Berdell, Charles P. Berdell, Mrs. A. Berdell, Erastus S. Spencer, as receiver of Robert H. Berdell, and Eliza W. Parkhurst." The defendant objected to the admissibility of the record in evidence "as not being competent testimony in this case against him," and the objection was overruled and the record received in evidence.
It does not appear for what purpose the record was offered and received, nor was any particular objection to it specified. It does not appear what use the referee made of it, and it is impossible to perceive what, if any, weight or bearing it had upon his determination. There was no finding in reference to it, and none was requested. The counsel for the appellant did not, in his argument before us, point out wherein he regarded the record incompetent as evidence when it was received; and we are unable to say that it was incompetent. The action in which that judgment was rendered was brought, among other things, to set aside certain conveyances of and liens upon the lands of Robert H. Berdell, as a fraud upon his creditors, and, among other things, the court found, as the referee found in this action, that certain deeds, absolute in form, given by Berdell to Mrs. Parkhurst, were subsisting mortgages, and that he was indebted to her just as the referee found he was in this action, and that he gave her the first mortgage for $80,000, and the substituted mortgage upon the Goshen property for the same sum, under the circumstances and upon the consideration found by the referee in this action; and it was found and adjudged there that the trust deed for the benefit of his children had never been delivered and never took effect. Mrs. Parkhurst was a party to that action, and there was litigation between her and him as adverse parties, although both of them were defendants, and, therefore, whatever was adjudicated, as between them, estopped them as if the adjudication had been made in an action wherein one of them was plaintiff and the other defendant. As it appears to have been material to establish in this action some of the matters adjudicated in that in favor of Mrs. Parkhurst, it was competent for her to establish them by the judgment-roll introduced in evidence. But that judgment was rendered in September, 1878, and before the trial of this action an appeal had been taken to the General Term. That is all that appeared upon the trial of this action. But the appeal did not suspend the operation of the judgment as an estoppel. The records of our court, however, disclose that that judgment was affirmed at the General Term and upon appeal to this court was reversed in October, 1884, on the ground that, as matter of law, upon the undisputed facts, the trust deed above mentioned was delivered and did take effect. ( 97 N.Y. 13.) Upon the argument before us the only objection specified to the judgment-roll as evidence was that the judgment had thus, several years after it had been received in evidence, been reversed. But such an objection is not available; it does not appear in the record now before us. If the judgment-roll was competent evidence when received, its reception was not rendered erroneous by the subsequent reversal of the judgment. Notwithstanding its reversal, it continued in this action to have the same effect to which it was entitled when received in evidence. The only relief a party against whom a judgment which has been subsequently reversed has thus been received in evidence can have is to move on that fact in the court of original jurisdiction for a new trial, and then the court can, in the exercise of its discretion, grant or refuse a new trial, as justice may require.
The omitted portion of the opinion is taken up with a discussion of the question as to whether, conceding the reversal of the judgment could be availed of, its reception in evidence would be ground for reversal here. The court reached the conclusion that the evidence could not have injured the appellant, and so its reception would not require a reversal.
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During the progress of the trial, Mrs. Berdell, the wife of the defendant, upon the examination of plaintiff's counsel, gave evidence as to conversations with him when they were alone as to plaintiff's securities taken by him, his obligations to her for the same, and his promise to secure her therefor. She was cross-examined by his counsel as to the same conversations, and then, after the answers had been taken, his counsel having previously made no objection to the evidence, moved to strike it out on the ground that the conversations were confidential communications and prohibited under section 831 of the Code. The motion was denied, and this is now complained of as error. It is a complete answer to this exception that the objection came too late. The defendant could not lie by, tacitly consent to the examination, and take his chances as to the evidence, and, when it proved unsatisfactory to him, complain of its admissibility. ( Quin v. Lloyd, 41 N.Y. 349; Miller v. Montgomery, 78 id. 282.) But if the objection to the evidence had been timely, it would not have been available. The section of the Code referred to forbids not all communications between husband and wife, but only confidential communications. What are confidential communications within the meaning of the section? Clearly not all communications made between husband and wife when alone. If such had been the meaning it would have been so provided in general and simple terms. They are such communications as are expressly made confidential, or such as are of a confidential nature or induced by the marital relation. The conversations with her husband, testified to by Mrs. Berdell, cannot be excluded by the application of any of these tests. They were ordinary conversations relating to matters of business which there is no reason to suppose he would have been unwilling to hold in the presence of any person. There was, therefore, no violation of the section of the Code cited.We have now noticed the principal objections relied upon by the defendant. Others were argued and we have given them careful consideration. It is sufficient to say of them that we do not find in them any occasion for the reversal of this judgment.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.