Osborn v. Robbins , 1861 N.Y. App. Div. LEXIS 232 ( 1861 )

Allen, J.

The declarations of the payee of the note are not evidence against' the plaintiff, who subsequently became the holder. (Page v. Cagwin, 7 Hill, 361. Booth v. Swezey, 4 Selden, 276. Tousley v. Barry, 16 N. Y. Rep. 497.) The conversation between one of’ the defendants and the payees of the note, and which was excluded, was not offered as a part of the res gestee; and if the offer had been put upon that ground, it would not have been admissible. It took place after the transaction was closed, so far as the evidence then showed, for it was before the interview between the constable and the defendant Sterling Bobbins at the tavern, concerning the discharge of the prisoner from arrest. The note had been given, and the parties had left the office, and the business had been closed; and whether it had been terminated fifteen minutes or as many months, is not material. The offer was to prove a conversation “ respecting the giving the note and the transactions that had occurred.” Those transactions were the facts to be proved. It was a narrative of a past occurrence that was proposed to be proved. To constitute a part of the res gestee, the declaration must be concomitant with the principal act. (1 Greenl. Ev. § 110.) They must have been made at the time of the act done which they are supposed to characterize. (1 Cowen & Hill’s Notes, 585.) Where the holder of a check went into the bank, and when he came out, said he had demanded its payment, the declaration was held inadmissible to prove the demand, as being no part of the res gestee. The demand was the fact to be proved. (Brown v. Lusk, 4 Yerg. 210.) Declarations of a party in'.respect to the sale of copper, made after the bargain and before its delivery, are not admissible as a part of the res gestee, although made to a person from whom he obtained a part of the copper. (Moore v. Meacham, 6 Seld. 207.) As was said by Judge Gray, in the case cited, the offer here was but an attempt to show the construction which the plaintiff gave to the occurrence that had transpired. In McCormick v. Barnum, (10 Wend. 104,) the declarations of . the surveyor were admitted as the declarations of an agent of the plaintiff, and the question before us was not considered. The declarations of the parties which were given in evidence in Kimball v. Huntington, (id. 675,) were the closing up of the settlement and a final statement of their affairs and dealings, made as a part of the settlement. In the language of Judge Nelson, they “ were made at the conclusion of it, and not afterwards, as contended by the defendant, and under the circumstances were clearly competent.” In Boyden v. Moore, (11 Pick. 362,) and Crary v. Sprague, (12 Wend. 41,) the declarations related and gave character to the possession of the property in dispute, and were strictly concomitant with and “ were calculated to unfold the nature and quality” of the principal part, to wit, the possession which they were intended to explain. Where, immediately after a negotiation for a loan of money, the lender goes into another room and, the borrower not being present, states to a third person the terms of the transaction, such declarations constitute no part of the res gestee, and are not evidence against a subsequent holder of the note. (Smith v. Webb, 1 Barb. S. C. Rep. 230.)

There was no error in excluding this conversation.

The evidence offered, relating to a prior agreement between Eice and the principal defendant, to settle the injury complained of, was properly excluded. Without actual satisfaction, the accord constituted no defense. (Tilton v. Alcott, 16 Barb. 598. Russell v. Lytle, 6 Wend. 390. Hawley v. Foote, 19 id. 516. Ralston v. Baxter, Cro. Eliz. 504. Rayner v. Orton, Id. 305.) It could throw no light upon the transaction under investigation; neither did it affect the plaintiff with notice or knowledge, that the note had been given in compromise of a felony. All the plaintiff knew was what he learned from the conversation in his house, and that was no evidence; and the defendant did not propose to give any further evidence to bring home to the plaintiff any other or different notice or knowledge.

• So, too, the offered evidence to prove the falsity of the charge of rape was properly excluded. The answer did not allege that the charge was compounded, and it was not therefore within any issue made by the pleadings. Whether the criminal charge was true or false was not material as affecting the consideration of the note, or the defense interposed. The motive of the principal defendant, in compromising with Eice, was certainly not material. .

The judgment should be affirmed.

Bacon and Múllin, Justices, concurred.