APPEAL from an order of the general term, first department, reversing a judgment entered upon the decision of the special

term.

A. H. Ammidown, for appl'ts; Charles II. Griffin, for resp'ts. PER CURIAM.-- This action was brought to set aside an assignment made for the benefit of creditors. The trial resulted in a judgment for the plaintiffs. On an appeal to the general term the judgment was reversed and a new trial granted upon questions of law. On an appeal to this court the order of the general term was reversed and the judgment of the trial court affirmed upon the ground that the findings of facts sustained the conclusions of law made by the trial court. After the decision of this court was announced the general term made an order amending its order reversing the judgment so as to state that it was reversed upon questions of fact, as provided by § 1338 of the Code of Civil Procedure, after which an application was made to this court for a reargument, which was granted.

The finding that the assignment was made for the purpose of hindering, delaying and defrauding the plaintiffs was not sustained by the evidence, and it now appearing that the reversal of the general term was made upon a question of fact, it follows that the order should be affirmed and judgment absolute ordered for the defendants upon the stipulation.

All concur

JAMES S. CARRADINE, Resp't, v. HORACE HOTCHKISS et al.,

App'lts.1

(Court of Appeals, Second Division, Filed June 27, 1890.)

1. EVIDENCE. - DOCUMENTARY.

The fact that a letter to plaintiff is produced by him at the request of defendant's counsel does not justify the court in compelling the defendant to put the letter in evidence.

2. SAME.

Shortly before the trial closed, the defendant's counsel produced a paper which he identified from previous evidence as being made on the day the order for stock in question was given by plaintiff. The memorandum was not made in the presence of plaintiff, and the court excluded it. Held, no error; that as defendants had given their evidence upon this branch of the case, and rested, it was discretionary with the trial court as to whether it should again open the case to receive further evidence upon the subject.

APPEAL from a judgment of the general term of the superior court of the city of New York, affirming a judgment of that court entered upon the verdict of a jury.

T. Henry Dewey, for app'lts; Charles H. Kitchel, for resp't.

HAIGHT, J. This action was brought to recover damages by reason of the refusal of the defendants to deliver to the plaintiff 500 shares of stock known as St. Louis Common or Nickel Plate, which the defendants as brokers had purchased for and on account of the plaintiff. On the 23d day of November, 1886, the plaintiff demanded of the defendants the delivery to him of the 1 Affirming 13 N. Y. State Rep., 295.

stock in question, at the same time tendering to them the sum of $3,418.23, which he claimed was the whole amount due on his account. The defendants refused to deliver the stock, claiming that there was due them on the account the sum of $7,530.73. The only dispute between them arose out of a transaction in Richmond Terminal stock. On the 19th of November, prior to the demand to which we have already alluded, the defendants sold short on the plaintiff's account 200 shares of Richmond Terminal stock at 58 7-8, 100 shares at 60 and 100 shares at 63. This transaction resulted in a loss which constitutes the difference between the parties. The business was transacted on behalf of the defendants by one Frank E. Blanchard, their agent, who testified that the plaintiff authorized him to sell Richmond Terminal stock short and to buy the same in at his discretion when he thought the proper time had arrived, and that the sales were made under the discretion so given by the plaintiff. The plaintiff denied that he ever gave Blanchard such authority and repudiated the sales made on his account, and this was the only question tried.

Upon the trial the plaintiff testified, in answer to questions by the defendants' counsel, that Mr. Blanchard wrote him on Monday to the effect that the stocks were going up. This letter was produced on the request of the defendants' counsel. Thereupon the plaintiff's counsel demanded that the letter be put in evidence, the defendants having called for it and read it; the court ruled that the letter, having been called for by defendants' counsel and inspected, should be put in evidence; the defendants' counsel objected to putting it in and asked the judge if he ordered him to put it in; the court replied in the affirmative and thereupon defendants' counsel took an exception to the ruling, and then, in obedience to the direction of the court, read the letter to the jury.

Whatever may have been the ancient rule in England upon the subject, we do not understand that the ruling of the court can be sustained under any rule now existing in England or in this state. Gordon v. Secretan, 8 East., 548; Kenny v. Clarkson, 1 Johns., 385, 393; see note at end of the case; 2 Phillips on Ev., 537, note 460.

But we fail to see wherein the defendants were harmed or prejudiced by the reading of the letter. The letter was addressed to the plaintiff, dated November 15, 1886, and is as follows:

"DEAR SIR-I asked Mr. Lord to see his friend who is manipulating Richmond Terminal stock. He saw him this morning and was told to buy the stock to-day and by no means sell it short. This information is from the party who has put the stock up, and I submit it to you to act upon as you think best.

"Very respectfully,

"F. E. BLANCHARD."

The plaintiff had previously sold 600 shares Richmond Termi nal stock short at 50, and, after the receipt of this letter he ordered Blanchard to buy in that amount, which was done at 50 1-2.

He also claimed to have given Blanchard an order to buy 600 shares more on the 15th, which appears to have been misunderstood by Blanchard, he only purchasing 600 to make good the amount that the plaintiff was short. The next day, the 16th, the plaintiff and Blanchard had an interview in reference to the purchase ordered the day before and of the failure of Blanchard to comply with the second order given. The stock had in the meantime gone up and the plaintiff expressed his displeasure and disappointment at Blanchard's failure to comply with his order. It was at the close of this interview that Blanchard claims the discretionary order was given him to sell short when the proper time arrived. Blanchard, in delivering his direct testimony, stated that on the 15th he sent a letter to the plaintiff saying that he had. heard that Richmond Terminal stock was to be put considerably higher by the pool manipulating it. The plaintiff had also testified to the receipt of the letter from Blanchard, and that it was to the effect that the stocks were going up, so that the contents of that letter were previously made to appear by the testimony of both Blanchard and the plaintiff. It is true it contains the statement, not mentioned in the oral testimony, that "I submit it to you to act upon as you think best," but of what importance or materiality is this statement as bearing upon the question tried? It is suggested by one counsel that it tended to disprove the claim of Blanchard that he had a discretionary order, but this statement can have no such effect, for the letter was written on the 15th of November and the discretionary order testified to by Blanchard was given on the day following. So that there is nothing in the letter that is in conflict with the defendants' theory of the case, or that could possibly prejudice him before the jury upon the question submitted for its determination.

Shortly before the trial closed the defendants' counsel produced a paper which he identified from the testimony of Blanchard as a memorandum made at the Fifth Avenue Hotel on the afternoon of the day that the discretionary order was given by the plaintiff to Blanchard, and offered it in evidence. It was objected to by the plaintiff upon the ground that it was incompetent and should have been produced in the first place. In answer to a query by the court, it was conceded that the memorandum was not made in the presence of the plaintiff. Thereupon the court sustained the objection, and, we think, properly. The defendants had given their evidence upon this branch of the case and had rested. It was, consequently, discretionary with the trial court as to whether it should again open the case to receive further evidence upon this subject; but we do not understand the memorandum to be competent as evidence in chief. Blanchard had already testified to the conversation that took place between himself and plaintiff at the time that he claimed the discretionary authority was given to him to purchase and sell the stocks on plaintiff's account. He did not claim that there was any failure in his memory as to what was then said and done. If there had been a failure in memory on his part, and if he had made a memo

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randum of the conversation at the time, the trial court might have permitted him to look at the memorandum for the purpose of refreshing his recollection and then to testify as to what was said and done by the parties.

We have examined the other exceptions appearing in the appeal book, but are of the opinion that they are correctly answered by the court at general term.

The judgment should be affirmed, with costs.

All concur.

In the Matter of the probate of the last will, etc., of JOSEPH GALL, deceased.

(Surrogate's Court, Kings County, Filed April, 1890.)

MARRIAGE-WHEN WILL NOT BE PRESUMED TO HAVE TAKEN PLACE PRIOR TO MAKING WILL.

Testator made his will in 1883 and a codicil on April 28, 1884. In 1883 he commenced an illicit intercourse with one A, who afterwards became his wife. In January, 1884, he placed her in a tenement house where his child was born and afterwards bought her a house which he said was for "his family." He also called her mother by the name of "mother" prior to the making of the codicil. It appeared however that he did not live with A prior to that time or hold her out as his wife, and two or three days before stated to a friend that his social standing and the ignorance of the girl would not admit of his contracting marriage with her. Held, that the facts showed that the parties had not passed on the date of the codicil from a state of illicit intercourse to that of marriage, and that the will must be deemed revoked by the subsequent marriage of testator.

APPLICATION for probate of will.

Geo. B. Morris, for proponent; A. Simis, Jr., for widow.

Аввотт, S.-Joseph Gall died on the 22d day of May, 1886. Two months afterward the suit of Gall v. Gall was commenced in the supreme court, Kings county; the plaintiff claiming dower in the real estate of Joseph Gall, deceased, as his widow. This action resulted favorably to the plaintiff and the judgment was affirmed by the general term and court of appeals, Gall v. Gall, 114 N. Y., 109; 22 N. Y. State Rep., 746, and settled the fact that an unceremonial marriage had been entered into between the parties, without fixing the time when such marital relation commenced. In this proceeding the delicate duty devolves upon me of attempting to fix this time, which can be done, I think, better negatively than positively.

Joseph Gall left a last will and testament, dated April 3, 1883, with a codicil thereto, dated April 28, 1884. Proceedings for probate were begun in the first instance in the New York county surrogate's court, on the theory that deceased was a resident of the city and county of New York, as undoubtedly he was when both will and codicil were executed. The case of Gall v. Gall, supra, fixed testator's residence in the city of Brooklyn, county of Kings, at the time of his death, whereupon the surrogate of New York county, having lost jurisdiction, dismissed the proceeding, and it was commenced de novo in this court. The testator left a widow, Amelia, and two children, Betsey A. Gall, born February 29, 1884, and Caroline Gall, born July 8, 1886, about six weeks after

the death of the father. The contestants claim that under the R. S., chap. 6, title 1, art. 3, and paragraph 43 (Banks, 8th ed., vol. 4, 2548), the will and codicil being made before testator married a second time, were revoked by such subsequent marriage and birth of issue.

It is not contended that testator was married when the will was excuted on April 3, 1883, but the proponents insist that this nonceremonial marriage was consummated some time between the making of said will and the codicil on April 28, 1884. To this I cannot assent.

The relation between these parties was, at its inception, confessedly illicit, and Judge Danforth says, in Harbeck v. Harbeck, 102 Ν. Υ., 714; 2 N. Y. State Rep., 451, "That the union between the parties was, at first, illegal, is conceded; if a change occurred, it was followed by no formal celebration, nor is there evidence of any present agreement to take each other for husband and wife." I do not think the evidence warrants me in finding that these parties had on or before April 28, 1884, "passed by contract or by mutual consent from the state of concubinage into that of marriage."

A case strongly relied upon by the proponents is Badger v. Badger, 88 N. Y., 546. It differs from this case in that the proof therein failed to establish an illicit origin of the cohabitation as a separate and independent fact. Judge Finch, in his opinion, says, pp. 553-554: "The rule that a connection, confessedly illicit in its origin, or shown to have been such, will be presumed to retain that character until some change is established, is both logical and just. The force and effect of such a fact is always very great, and we are not disposed in the least degree to weaken or disregard it. Brinkley v. Brinkley, 50 N. Y., 198.

"Very often the changed character of the cohabitation is indicated by facts and circumstances which explain the cause and locate the period of the change, so that in spite of the illicit origin the subsequent intercourse is deemed matrimonial, Fenton v. Reed, 4 Johns., 52; Rose v. Clark, 8 Paige, 574; Starr v. Peck, 1 Hill, 270; Jackson v. Claw, 18 Johns., 346, but a change may occur, and be satisfactorily established, although the precise time or occasion cannot be clearly ascertained. If the facts show that there was or must have been a change, that the illicit beginning has become transformed into a cohabitation matrimonial in its character, it is not imperative that we should be able to say precisely when, or exactly why the change occurred." Caujolle v. Ferrie, 23 N. Y., 90.

But in order to hold that such a change has taken place, and to approximate the time, it is necessary to show a mutual present consent between the parties to become husband and wife. "The concubinage which existed for so long a period cannot be transformed into matrimony by evidence which falls short of establishing the fact of an actual contract of marriage. Such a contract, it is true, may be proved by circumstances, but they must be such as exclude the inference or presumption that the former relation continued, and satisfactorily prove that it had been changed into that