Brokay v. Duffy. special exception to the statement of the trial judge that there was no evidence in favor of the contention to the contrary of the fact found, which was that the defendant's grantor was not insane. This assertion may be subjected to a very fair and certain test. Suppose that the court had made separate findings of all the facts with his general conclusion of law, as he might and as he was formerly obliged to, and after finding specifically that the defendant's grantor was not insane, as is now implied in his decision, and that finding was supported by evidence, as it is now in the decision, and he was requested by the plaintiff to find also that there was some evidence the other way, that is, in support of the contention that he was insane, and the court refused so to find, and there was an exception to such refusal, would that refusal to find as to evidentiary facts constitute grounds for reversal in this court? It certainly would not so long as the finding in favor of the defendant was supported by evidence (Crim v. Starkweather, 136 N. Y., 637); and it was always the law in this court that a judgment could not be reversed for a refusal by the trial court, at the request of the defeated party, to find even a material fact unless it was conclusively established (Koehler v. Hughes, 148 N. Y., 507), and now, since the change in the Code, that rule is held more strictly than ever (National Harrow Co. v. Bement, supra). No one claims that the fact in this case, if it be a fact, which was determined adversely to the plaintiff, was conclusively established. When the facts found are supported by evidence, as they are here, a finding that there was some or not any evidence the other way cannot possibly be material. This court cannot reverse a judgment or sustain a reversal below where the evidence was sufficient, for the sole reason that the trial court stated in his decision that there was no evidence to the contrary. That statement, whether right or wrong, was not a subject of exception any more than if it Brokay v. Duffy. had been made by the court upon the trial or submission of the case (Rutherford v. Schattman, 119 N. Y., 604. The case is a very plain one in this respect, that it has not yet been found by any court that the plaintiff performed his contract or offered to perform. Nor that the defendant committed any breach on her part or was for any reason unable to perform. How the plaintiff can recover in this situation I am unable to perceive. The plaintiff's counsel has argued no exception taken at the trial, and the court has not been able to find any excep tion in the record except that filed after the decision to a statement that there was no evidence of a certain fact claimed by the defeated party, and which seems to me is wholly insufficient as a basis for sustaining the reversal below. But quite apart from this, the statement of the trial judge, that there was no evidence that the defendant's grantor was insane, was entirely correct. There is not a shred of evidence in the case to show that he was insane, except the depositions contained in the lunacy proceedings taken in Ireland, where the defendant's grantor then lived, and when he was beyond the jurisdiction of the court, and which proceedings have been vacated by the order of the court. These depositions were hearsay and not admissible to prove the issue made by the complaint, and though they were admitted the court had the right to hold in the end that they proved nothing. The plaintiff's counsel practically admits, as he must, that these written statements of persons in Ireland touching the mental condition of the party were not admissible to prove that the defendant was unable to convey good title at the law day. But he insists that the court, having admitted them, though erroneously, was bound by them, and could not say, as he did when deciding the case, that they had no probative force, and he cites a case to prove that proposition. (Van Dusen v. Sweet, 51 N. Y., 128). Brokay v. Duffy. But it will be seen, I think, upon reading the case, that it holds nothing of the kind. The proposition that a court, if it happens to receive hearsay evidence improperly and against the objection and exception of the party against whom it was offered, cannot disregard it when deciding the case, does not strike me as reasonable or sound. Testimony which has no probative force inherently is not changed in character by a ruling admitting it at the trial against the objection of the opposite party. It is just as worthless after admission as it was before, and a judge who admitted it does not commit an error by stating in the decision that it proves nothing, and that as the effect of the statement made by the learned trial judge in this case as one of the reasons for his decision. When the plaintiff's counsel offered the statements of third parties to prove that the defendant's grantor was insane, and succeeded in putting them into the case against the objection of his opponent, he took the chances of a decision by the court that they proved nothing. The plaintiff cannot now complain because the court, in deciding the case, refuse to give effect to incompetent testimony which had no tendency to prove any material fact. He had no right to rely upon testimony which he now admits and could have known at the trial to be inadmissible. The findings in this case, as above remarked, certainly sustain the judgment, and there was no error of law committed at the trial which justified a reversal of the judgment. The difficulty in the case, so far as the plaintiff is concerned, is that whereas the court below evidently intended to reverse upon the facts, as it had the power to do, the order contains no statement to that effect. This is a mistake which parties frequently make, but it does not seem to me that the court should attempt to extricate them from the consequences by holding that an exception to the statement of the trial judge in a short decision that there was no evidence of a certain fact, which he found Young v. Shulenberg. the other way, is sufficient to sustain the reversal in this court. The judgment should, therefore, be reversed and that of the Special Term affirmed, with costs. PARKER, CH. J.; BARTLETT, HAIGHT, MARTIN and WERNER, JJ., concur with VANN, J., for affirmance; O'BRIEN, J., dissents. Order affirmed, &c. EVERETT YOUNG, RESPONDENT, v. JOHN C. SHULENBERG, APPELLANT. COURT OF APPEALS-JANUARY, 1901. § 370. Evidence.-Proof of relationship by family pedigree. Proof of remote family relationship, by the family pedigree, is allowed as an exception to the general rule against hearsay evidence. Such family history, transmitted from one generation to another, by oral or written declarations, may be received in evidence to prove family relationship, when it is first shown that the person making the declarations was a member of the family and that he is dead, incompetent or beyond the jurisdiction of the court. Slight proof of relationship of such person is, however, sufficient, and the presumption of his death will follow when, from lapse of time, it would be contrary to the course of nature that he should be living. It was accordingly held that a deed executed in London in 1817 and acknowledged before the United States Minister, purporting to convey lands in question in this State, which recited that a person of the same name as one of the grantors had died in London, intestate, seized of the premises, leaving the grantors as his widow and heirs at law, which deed and others constituting a chain of title from the State had all been recorded and were in the possession of the last grantee, was sufficient to raise the presumption that the widow who had acknowledged the deed was not living, and to establish, in the absence of any rebutting evidence, the facts recited therein, viz.: that the Young v. Shulenberg. former owner had died intestate, leaving her and the other grantors as his widow and heirs at law. (Decided January, 1901.) Appeal from a judgment of the Appellate Division of the Supreme Court, in the Third Judicial Department affirming a judgment entered upon a verdict. Clark L. Jordan for appellant. Andrew J. Nellis for respondent. VANN, J.-The complaint charges the defendant with unlawfully entering upon lands of the plaintiff and cutting down and carrying away a large number of trees therefrom. Neither by his answer nor evidence did the defendant claim the right to enter upon the land in question or to cut trees thereon, but he put at issue the entry by himself, as well as the title of the plaintiff. The land upon which the alleged trespass was committed was virgin forest in the County of Fulton that had never been so inclosed, cultivated or used as to constitute an adverse possession (Code Civ. Pro., sec. 370). The plaintiff proved a record title thereto, commencing in 1794, when letters patent were granted by the State of New York, and extending through various mesne conveyances until 1872, when the apparent title vested in William Claflin, of whom in September, 1893, the plaintiff purchased by a contract which imposed upon him the duty of paying the annual taxes and gave him the privilege of cutting and carrying away timber upon certain conditions. He cut 8,000 or 10,000 logs every year on the tract and had such possession only as may be implied from the foregoing facts (Machin v. Geortner, 14 Wend., 239; Hunter v. Starin, 26 Hun, 529). The attack made upon the title by the defendant is that there is no legal evidence to show that Anne Ellice and six others, all residents of England, who, in July, 1817, |