majority">By the Court, Balcom, J.

The plaintiff offered to prove a conversation had between him and the defendant Sexton, when neither of the other defendants was present, which was objected to by the defendant on the grounds: 1. That conversations between Sexton and the plaintiff were not competent for any purpose. 2. That Sexton was a competent witness, and his statements were not evidence. The referee received the evidence and reserved his decision as to its admissibility. The defendant objected, and insisted that "the referee should decide to admit or reject the evidence, which he declined to do ; and the defendant excepted. The defendant excepted to the decision of the referee that he would receive" the evidence. The referee received other evidence in the same way, under the objection of the defendant, who excepted to the decisions *133of the referee that would so receive it. At the close of the evidence in the case there is a statement that the referee thereafter decided the questions reserved, as to the above evidence," in. favor of the plaintiff, and that the defendant excepted to each decision separately.

The Superior Court of the city of New York has held that a referee can not receive, evidence against the objection and exception of a party, and reserve to himself the power of retaining or rejecting it at the conclusion of the case. (See Clussman v. Merkel, 3 Bosw. 402; Brooks v. Christopher, 5 Duer, 216.) There is an intimation in favor of the same principle in McKnight v. Dunlop, (1 Seld. 537.) And we are of the opinion the referee erred in this case by receiving evidence and reserving the question as to the admissibility, when the defendant insisted he should decide as to its admissibility at the time he received it. A party has the right to know, when evidence is received against him, whether it is to be held competent, so that he may except to its reception and conduct his side of the case with knowledge of what is to remain in it as evidence.

The referee erred in permitting the plaintiff to prove the declarations of the defendants who did not answer the. complaint, and were not served with the summons in the action. Those declarations tended to establish the allegations of fraud in the complaint, and were made when the defendant who defended the action was not present. They did not accompany acts, and were not res gestee. They were not offered to establish the complaint as against the defendants who were not served with the summons. But if they had been offered for that purpose they could not have been received; for those defendants were not brought into the case so that the judgment in it would bind them; and evidence against them was wholly irrelevant to the issue joined in the action. (See Robinson v. Frost, 14 Barb. 536 ; Horton v. Payne, 27 How. Pr. R. 374.)

Declarations of Sexton, made after he executed the assign*134ment to Cook of Ms judgment, against the Messrs. Yorks, were proved. They were not competent evidence against the defendant Theodore D. Yorks. (See 16 N. Y. Rep. 497 ; 21 id. 247; 4 Seld. 276 ; 6 id. 93.) Those declarations, and the declarations of Anthony Yorks, which the referee permitted the plaintiff to prove, were not admissible, within, the principle held in Adams v. Davidson, (6 Seld. 309.)

[Broome General Term,November 20, 1866.

The plaintiff insists that the declarations' of Sexton and Anthony Yorks were competent evidence against the defendant Theodore D. Yorks, for the reason, as he claimed, that there was a fraudulent combination between them and Theodore D. Yorks to cheat the plaintiff, who was a creditor of Sexton. TMs position is untenable, for the reason that those declarations were proved to establish the alleged fraudulent combination, and were not admissible for that purpose. The rule is, that a fraudulent combination or conspiracy must be established before the declarations of one conspirator can be given in evidence against another, for any purpose, (33 Barb. 165 ; 39 id. 403,) which was not done in tMs case.

The plaintiff asked Anthony Yorks, on Ms cross-examination, if he had been indicted for perjury. To which the defendant objected, on the ground that the indictment should be produced, as the best evidence. The referee overruled the objection, and the defendant excepted. The witness answered: “I have been, three or four times.” That question was improper. If the plaintiff had the right to prove the fact that the witness had been indicted for perjury, he could only do it by the production of the indictment, or a certified copy of it. (See Newcomb v. Griswold, 24 N. Y. Rep. 298.)

. It is unnecessary to examine any other question in the case; for the judgment in it must be reversed and a new trial granted, for the errors of the referee already noticed.'

Judgment reversed and a new trial granted ; costs to abide the event of the action.

Parker, Mason, Balcom and Boardman, Justices.

Citation profile

Relationships

How this case has been treated — in progress