Note on the Examination of Witnesses. 28 In a probate proceeding it was held that the Code, as it stood in January, 1869, did not disqualify a widow who contested a will, from testifying, the heir-at-law being also a contestant. The person named as executor is not, before probate, regarded as executor, within the meaning of the statute as to testifying to communications. Dietrich's Estate, 1 Tuck. 129. The fact that the witness's interest is in favor of the administrator against whom he is called, does not make him competent. Le Clare v. Stewart, 8 Hun, 127. 29 In an action against one as a surviving partner it was held error to allow plaintiff, as a witness in his own behalf, to testify to conversations had between him and the deceased partner. Green v. Edick, 56 N. Y. 613. 80 30 To make the word "assignee" apply, the party deemed such must stand in succession in interest to the deceased. One who claims under a transfer made previous to the transaction or communication, is not an assignee within the statute. Cary v. White, 59 N. Y. 336. 31 Thus where the action was by a son against the second husband of his deceased mother, to recover moneys he sent her while living, to keep for him, held that as the stepfather took the money either by assignment, by way of loan or gift, or as executor, the son could not testify against him to the agreement of the mother to keep the money for him. Mosner v. Raulain, 66 Barb. 213. One through whom a party to an action derives title is not a competent witness to prove transactions with a deceased person, as against a grantee of real estate from the latter. Grantees, though not named in section 399, are within the reason of the provision, and included in "assignees." Mattoon v. Young, 45 N. Y. 696. 32 " But one taking as assignee of A by an assignment which B procured to be made for the purpose of securing the payment of a debt due from B, is not an assignee of B within the protection of the prohibition. Barney v. Equitable Life Assur. Soc., 59 N. Y. 587. A bank held blank certificates of stock as collateral security for a loan which its president procured to be made to a third person for his own benefit, and which stock the president borrowed from the third person and left with the bank, with the false representation that he, the president, took it as a collateral security for the loan. Held, that the bank held it as an assignee of the president, within the rule. Andrews v. Nat. Bank of N. Am., 7 Hun, 20. If defendant in trespass justifies as having entered as the agent of the true owners who claim under a deceased person, plaintiff's grantor Note on the Examination of Witnesses. cannot testify against defendant to conversations with the deceased. Wheelock v. Cuyler, 4 Hun, 414. 33 Though the husband is not in strictness included in the term "next of kin," of his wife, yet he is so included within the equity of the provision of section 399 of the Code of Procedure, which prohibits a party from being examined as a witness in his own behalf, in respect to transactions had personally with a deceased person, against persons who are next of kin, &c. Dewey v. Goodenough, 56 Barb. 54. Where one party gave evidence of admissions made by the grantor of the other, -Held, that the grantor could testify to rebut this evidence, although it related to transactions with a deceased person through whom the former claimed title. Cole v. Denue, 3 Hun, 610. Where testimony to oral declarations of the deceased was admitted, -Held, that counter declarations in writing were admissible. Smith v. Christopher, 16 Abb. Pr. N. S. 332. Plaintiff having put in evidence letters by defendant to a person since deceased,-Held, that defendant was entitled to give testimony explaining away the letters, although such testimony related to at transaction with the deceased. Sanford v. Sanford, 61 Barb. 293. 35 A surviving partner suing as such on a sale which was partly negotiated by personal communications between defendant and himself, and afterward consummated by personal communications between defendant and the deceased, may testify to the former communications, without thereby opening the way to allow defendant to testify to the latter, unless perhaps where the former testimony so refers to later communication as to make that necessary to explain. Goodwin e. Hirsch, 37 Super. Ct. (J. & S.) 511. * In offering defendant's testimony it is not necessary to specify that he is offered as a witness to the same matter. If offered generally, as a witness, he should be sworn; but his examination should be restricted to the matters as to which the plaintiff's assignor had testified. Unless he distinctly states that if he could not testify on other points he did not wish to be sworn, the court has no right to exclude him. Brown v. Richardson, 20 N. Y. 472; rev'g 1 Bosw. 402. The fact that after an assignor has been examined on plaintiff's behalf, defendant, instead of immediately cross-examining, moves a nonsuit, and upon its being denied, recalls the assignor for further examination, does not make the assignor his witness in such sense as to deprive him of the right to testify himself, contradicting the same matter. Parsons v. Suydam, 3 E. D. Smith, 276. Josephthal v. Heyman. JOSEPHTHAL v. HEYMAN. N. Y. Supreme Court, First Department; Special Term, November, 1876. FORECLOSURE OF MORTGAGE.-PAYMENT.-ATTORNEY.-CONSTRUC TIVE NOTICE. An attorney, employed by a person about to make a loan of money, "to examine the title" of premises upon which a mortgage is to be made, as security for the loan, is not necessarily the agent of the person employing him, to receive money from the borrower, to pay off prior liens and incumbrances, nor is the lender liable for the misapplication of moneys so received by the attorney.* The specific employment of an attorney to examine a title does not in itself include the duty or obligation to satisfy liens; it is discharged by truly ascertaining and reporting them. Graves v. Mumford, 26 Barb. 94, examined and distinguished. Constructive notice to the principal, of liens discovered by his attorney, and its effect. † Trial by the court. The action was brought by Moritz Josephthal and Louis Josephthal, against Felix H. Heyman and another, to foreclose a mortgage on real estate. * Compare Heyman v. Beringer, p. 315 of vol. 1 of these reports. As to constructive notice to a party of incumbrances through his attorney, notice to attorneys or law agents employed in making purchases, affects their clients. Griffith v. Griffith, 9 Paige, 315; Perkins v. Bradley, 1 Hare, 219; Fuller v. Bennett, 2 Id. $94. But notice, to affect the principal, must be in the same transaction. Warrick v. Warrick, 3 Atk. 294. Therefore, if an attorney be employed to look over a title, and by some other transaction, foreign to the business in hand, have notice, this shall not affect the principal. Lowther v. Carlton, 2 Atk. 242; Mountford v. Scott, 1 Turn. & R. 274, 280; Toulmin v. Steere, 3 Meriv. 210. Compare, however, Distilled Spirits, 11, Wall. 356, and cases Josephthal v. Heyman. The defendant, Felix H. Heyman, applied to one Patzel, a broker, for a loan of $12,000, to be secured by a first mortgage on "defendant's" real property. Patzel called on Moritz and Louis Josephthal, the plaintiffs, and solicited the loan from them. Plaintiffs looked at the premises, and accepted them as good security, and informed Patzel that Adolph Levinger was their attorney to "examine the title." Patzel referred the defendant to Levinger, with whom he left the title papers. The defendant executed a bond and mortgage to secure the payment of $12,000, and left the same with Levinger. The plaintiffs, on receiving the bond, sent or delivered to Levinger two checks for $6,000 each, payable to the order of the defendant: one check drawn by the plaintiff, M. Josephthal, and the other by the plaintiffs jointly. The checks being so drawn to indicate to the plaintiffs, between themselves, separate interests in the loan. Levinger handed both checks to the defendant, who, retaining one, indorsed and delivered back to Levinger the other, with his own check for $1,245, to pay and satisfy an existing prior mortgage on the premises for $7,000 and interest, held and owned by another person. Levinger said to defendant "that he was not allowed to give the money until the first mortgage was paid off, and that he was to retain the money to pay off the first mortgage." He said this when he handed the checks to defendants, whereupon the defendants indorsed and re-delivered to Levinger the $6,000 check, making up the deficiency with his own check. Levinger appropriated to his own use the amount of the two checks handed to him by defendant, and did not pay the first mortgage, which is still outstanding. Levinger has absconded. This action is brought for a foreclosure of the $12,000 mortgage. The defendant claims to have received but $5,000 Josephthal v. Heyman. on the mortgage, which amount he claims to have tendered, and has paid into court. S. Spingarn, for plaintiff. D. T. Walden, for defendant. VAN VORST, J.-The application to the plaintiffs, on the defendants' behalf, was for a loan on a "first mortgage." No statement was made to them that the premises were already incumbered by mortgage, or that any part of the sum for which a loan was asked, was to be used for satisfying an existing mortgage. The plaintiffs had no actual knowledge of the prior incumbrance, until several months after the execution of the defendants' mortgage to them. The plaintiffs' agreement to make the loan, and the appropriation by by them of the $12,000, by their checks to the defendants' order, was predicated upon their understanding that theirs was to be a first mortgage. It was therefore clearly the duty of the defendants to see to it, that the premises were unincumbered, and to this end to clear the premises from the existing incumbrance, before taking the plaintiffs' money. The facts indicate that it was within the contemplation of the defendant, to use the money, or a portion thereof, which the plaintiff had agreed to loan, for the purpose of discharging the first mortgage. But this intention was at no time communicated to the plaintiffs by the defendant or Levinger. It is true that plaintiff referred Patzel, the defendant's broker, to Levinger, as his attorney, to "examine the title," preparatory to the completion of the loan. Levinger's duty under this employment was to ascertain whether the defendant had an unincumbered title to the premises. This duty would be satisfied by reporting to the plaintiffs the result of his examination, so as to leave to the plaintiffs to determine whether or not the loan would be consummated. But |