COOK ET AL. v. HOLT, 48 N.Y. 275 (1872)

JAMES W. COOK et al., Appellants, v. MARVIN HOLT, Respondent.

Court of Appeals of the State of New York.Argued September 26, 1871
Decided January term, 1872

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L. Hasbrouck, Jr., for the appellants.

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Myers Magone for respondent.

GRAY, C.

The referee has found, upon sufficient evidence, that the Weavers, under whom the plaintiffs claim title to the timber in question, failed to make or tender the payments necessary to divest Russell and others of their title to it. The proposition that a bailee cannot deny the title of his bailor has no application to a case like the one under consideration, in which the bailee has been compelled by action, of which the bailor had notice, to pay for the property to one having the true title. The objection to the question put to the defendant as a witness upon the stand, in regard to what Weaver told him as to where the timber came from, was not well taken. It was not put upon the ground that Weaver had not, when a witness, been asked whether he had told defendant it came from Russell Allen’s land, but upon the general ground that his declarations were not evidence. He had, as a witness, stated that some of it came from Russell
Allen’s, and some of it from other lands; and hence it was that his declarations to the defendant, that he got it from Russell
Allen’s land, were evidence for the purpose of discrediting his statement that it came from other land as well as the land of Russell Allen. The evidence was also admissible upon the ground that it was competent to prove these declarations made in the presence of one of the plaintiffs. These were the only questions presented not covered by the findings of the referee, which, as we have said, were warranted by the evidence; his legal conclusions were a necessary consequence. The judgment should be affirmed.

All concur.

Judgment affirmed.

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