Maria C. Bentley, Respondent, v. August Falker, Appellant, Impleaded with James Edward Johnson

Maria C. Bentley, Respondent, v. August Falker, Appellant, Impleaded with James Edward Johnson. Action to procure the surrender of a bond, and, mortgage assigned, by a forgery — evidence shoioing that part of the money paid for the forged assignment loas used by the plaintiff, is competent —• entries in the books of a deceased banker. In an action brought to procure the surrender'to the plaintiff of a bond and mortgage which she had acquired by assignment, and which she alleged had been transferred by her son to the defendant without her authority, and by a forged assignment, it is competent for the defendant to show that the proceeds of such sale were deposited in a bank by -the son, and that a check was drawn by him against such deposit in favor of his mother, and was used to pay a note given by the mother for a balance 'remaining unpaid upon the purchase of the mortgage by her, and that this payment was made at the suggestion of her husband, as such evidence would tend to show that the defendant had acquired an equity in the mortgage, and would also bear upon the question of the authority of the son to assign it. Book entries, made in the course of business by a banker since deceased, showing that the son of the plaintiff deposited the consideration for the assignment of the mortgage in the bank, and subsequently drew a check against such deposit in favor of his mother, are competent as evidence. Appeal by the defendant, August Talker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 22d day of March, 1897, upon the decision of the court rendered after a trial at the Broome Special Term. On or about September 13,1894, the plaintiff acquired by written assignment from L. M. Woodworth, a bond and mortgage executed by one James E. Johnson to him to secure $2,200. She then paid to Woodworth the whole of the purchase price she was to give for the same, except the sum of $600 for which she gave him Bentley & Co.’s note indorsed by herself. Subsequently, and on January 9, 1895, the defendant Talker received from Eben D. Bentley, the son of the plaintiff, 'such bond and mortgage and the assignment to her, and a paper purporting to be a sale and assignment of the same to the defendant, duly executed and acknowledged by her, for which he paid to Eben D. Bentley the sum of $1,645 by a draft on New York for that amount. The receipt of such papers and the payment of such draft was the consummation of negotiations for the purchase of such mortgage that had for several days been pending between defendant and Eben Bentley. The paper purporting to be the assignment from the plaintiff to the defendant Falker, of the bond and mortgage in question, was subsequently put upon record by him, and he has ever since claimed to be the owner thereof. This action is brought by Mrs. Bentley, in equity, asking for a decree requiring Falker to surrender to her the bond and mortgage and the assignment from Woodworth to her, and directing that the instrument purporting to be an assignment from her to Falker be canceled of record, and that it be adjudged that such bond and mortgage is still her property. She makes this claim upon the ground that her signature to such alleged assignment, and the signature of the notary to the acknowledgment thereto,'are forgeries, and that the transfer and delivery to Falker by her son was without her authority or consent. The trial court rendered a judgment in her favor, and from such judgment the defendant Falker brings this appeal. George McGowan, for the appellant. F. B. Gill, for the respondent. [MAJORITY — Parker, P. J.:] Parker, P. J.: Upon the trial of this action the defendant Falker offered to show by the books of one Lewiston Fairchild, a banker, in the village of Cazenovia, where the plaintiff and her son resided, that, on January 9, 1895, Eben Bentley deposited to his own credit in Fair-child’s bank the draft for $1,645, which the defendant gave to him for the b )nd and mortgage in question; that at the time he made such deposit e had only $93.94 to his credit; that immediately on that same d¡ lie drew upon said Fairchild his check for $602.25, payable to the order of L. M. Woodworth, and that it was subsequently paid by said banker and charged against Eben Bentley’s said account, composed of the $93.94 and the draft in question. Such books were excluded and the defendant duly excepted. It appears in the evidence that such check of $602.25, on the evening of the ninth of January, was received by Woodworth in payment of the note which the plaintiff had given for the unpaid balance of the purchase money she was owing him for the mortgage in question; and if the facts which the hoolis would have disclosed were also in evidence, it would appear that he was paid such debt from the money which Falker paid to Eben Bentley; that is, it would appear that the balance which the plaintiff owed Woodworth for the bond and mortgage in question had been paid with the defendant’s money. This wTas an important and material fact for defendant to prove, because if the assignment to him was a forgery, nevertheless, by the application of his money to the satisfaction of the amount still owing from plaintiff for the mortgage, he acquired an equity in the same, which she would be compelled to recognize and provide for in any judgment she might obtain in this action. Moreover, the application of such money to the payment of plaintiff’s debt, in connection with the further fact, which the defendant offered to prove, that it was done at the suggestion of the plaintiff’s husband, has a significant bearing upon the question whether the son was acting without her authority in transferring the mortgage. The evidence offered was, therefore, material, and in my judgment it was also competent. It was shown that the banker Fairchild was dead, and, therefore, the offer came within the rule which is quoted from Cowen & Hill’s Notes, and stated in Leland v. Cameron (31 N. Y. 121) to be as follows: “ That all entries or memoranda made (by deceased persons) in their course of business, or duty, by any one who would, at the time have been a competent witness of the fact which he registers, are competent.” There are a large number of cases illustrating this rule, many of which are cited in the following: Arms v. Middleton (23 Barb. 573); Fisher v. Mayor, etc. (67 N. Y. 73, 77); Nichols v. Goldsmith (7 Wend. 161, 162); Ocean, N. B. v. Carll (9 Hun, 239, 241). And the principle therein established is clearly broad enough to include the case before us. (See, also, 1 Greenl. Ev. § 115; Steph. Dig. art. 27.) It was error, therefore, to exclude this evidence, and as such error was plainly prejudicial to the defendant, the judgment appealed from must be reversed. All concurred. Judgment reversed and a new trial granted, costs to abide the event.