Laing v. Titus , 18 Abb. Pr. 388 ( 1864 )

By the Court.—Leonard, J.

The reference was for the purpose of ascertaining what amount remained due on the decree of foreclosure, and what sums the owner of the equity of redemption was entitled to be credited on account.

It was an inquiry after judgment, and there was no necessity for a change of parties in consequence of an assignment of the decree, whether made before or after the order of reference.

It was a collateral inquiry, ■ and not the trial of an issue formed by the pleadings.

The reference was to inform the court; although the order of reference says that the referee is to “ hear and determine” certain questions thereby referred to him, it should be regarded as a reference of an interlocutory matter, only to take the proofs and return them with the opinion of the referee. ¡

A reference to hear and determine such a matter is not authorized by the Code.

Had Mrs. Bebell been the owner of the decree, I think the evidence of her husband was admissible on this inquiry.

The rule which forbids husband and wife to be witnesses for or against each other, does not preclude the introduction of the affidavit of the one in the suit of the other, on a motion or other interlocutory or collateral matter.

It is not giving evidence. The deposition of the. husband in this matter has no other effect than an affidavit; and the only difference consists in subjecting him to a cross-examination.

The ownership of the decree is wholly immaterial.

The decree is a matter of record, and could not be discharged by any parol agreement. The referee correctly excluded evidence on these questions. The only question before the referee was' the amount due.

On this question the evidence seems to have been all taken, and there appears no reason for doubting thó correctness of the facts found on that point.

But assuming that Mr. Bebell was incompetent to make an affidavit, or to give any evidence on this reference while* his wife owned the decree, there appears to be no evidence, nor the offer of any, throwing suspicion on the bona-fides of the assignment from Mrs. Bebell to Amelia Bebell.

Mr. Bebell was entirely competent to give evidence' in behalf of Amelia, who was the owner of the decree at the time his deposition was taken before the referee.

I concur in affirming the order appealed from, with $10 costs.

Barnard, J.

—Under the order of reference the question as to whether the decree was abandoned or not, was not a subject for litigation. The offer to show that the conveyances were fictitious was properly rejected. It was not proposed to show that the conveyances were made with a view of defrauding Mrs. McAdam. The case shows that Mrs. McAdam dealt with Mrs. Bebell as the owner of the decree; and it was not questioned but that any payment made to her, or at her request, or any work done for her or at her request could be shown.

With respect to the 40th-street house it was not offered to be shown that Mrs. Bebell was the owner; she not being the owner it was immaterial who else was, for unless she was the owner, no work done on that house could be offset, unless it was done for her at her request, and if it was done for her at her request, then it was an offset whoever was the owner.

With respect to the objection to the reception of tire assignment to Amelia Bebell, although it may be doubtfúl whether strictly that assignment was properly received without a previous order of the court, substituting Amelia in the place of Mrs. Bebell as a party; yet as the husband of Mrs. McAdam had testified on her behalf, I think the court under the circumstances would have permitted the substitution so as to obviate the objection taken to Mr. Bebell’s evidence, on the ground of Mis being the husband of Mrs. Bebell; the error in this respect 'may be disregarded on this appeal. It may be conceded if the assignment was made to Amelia without consideration for the mere purpose of enabling Mr. Bebell to be a witness, and upon an implied or express trust or condition to reassign without consideration as soon as the litigation was terminated, that then the execution of the assignment would not have authorized Mr. Bebell to be examined as a witness, inasmuch as his wife would still be the real party in interest.

The offer, however, did not go to this extent, it was in effect simply to show that Amelia paid no consideration. This is not inconsistent with an absolute gift. The offer and exceptions cannot now avail, because, notwithstanding this ruling, the counsel subsequently went into the proof.

The offer to prove Mr. McAdam’s services was properly rejected. The services rendered by Mr. McAdam were a claim in his favor, and could not be set off by Mrs. McAdam against a claim against her without either an assignment to her or an express agreement between her and Mr. MeAdam and the holder of the decree, that they should be credited on the decree. There was no offer to show either such assignment or such agreement.

With reference to the other points raised I see no error. Order affirmed, with costs.