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SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. construed as meaning the cheapest editions that might be published; otherwise they are without effect.

The appellant urges that the agreement is void as being in restraint of trade. The principle that contracts in restraint of trade are against public policy, and, therefore, illegal, has no application to the publication of a copyrighted book or a patented invention. The very object of copyrights and of letters patent is to give monopolies. This constitutes their value. The case of National Harrow Co. v. Bement & Sons (21 App. Div. 290) is not in point. In that case an agreement was entered into by substantially all the makers in the country of the different kinds of harrows, to transfer their various patents to a single corporation, to receive in return licenses from that corporation for the particular styles of harrows which they had been manufacturing, and to sell their product only at prices fixed by the corporation. It was held that such an agree ment was in restraint of trade, and that the fact that the articles were manufactured under patents granted by the United States did not relieve a contract in relation to such articles from the rules of public policy that control agreements concerning other property. But the case of the publication of a single copyrighted book, or the manufacture of a single patented article, differs entirely from the combination that was condemned by the court in the case cited. We suppose that the author of a new geometry may fix the price at which he will sell his work at any sum, or arrange with others for its publication and sale at the stipulated price. But if all the publishers of books on geometry were to combine and agree not to sell any publication on that subject except for a stipulated price, the contract would be in restraint of trade and void. The difference of principle between the two cases is just this: Monopolies are not favored, and agreements to create the same, except where authorized by law, are void. No law authorizes a monopoly of all publications on the subject of geometry; the law does, however, authorize and grant to the author a monopoly in any particular work which he may publish on that subject.

The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

PAULINE W. SQUIRE, Appellant, v. ELLA V. GREENE and MARIA S.
DUNKIN, Respondents, Impleaded with Others.

ARTLISSA V. GEARON, Appellant, v. ELLA V. GREENE and MARIA
S. DUNKIN, Respondents, Impleaded with Others.

Personal transactions with a decedent · ·when a predecessor in title may testify to them — an assignee of a mortgage may not testify that her deceased assignor, owning three mortgages, stated that hers was a prior lien—a party liable for a deficiency is incompetent.

Upon the trial of an action involving the respective priorities of three mortgages, the holders of which derived their title from one Nafis, who had died prior to the commencement of the action, the person who assigned two of the mortgages to Nafis may testify to personal transactions had with Nafis concerning such mortgages, where it appears that the title of such witness is not in dispute and had ceased by the assignment to Nafis.

The holder of one of the mortgages is not competent to testify in her own behalf that Nafis represented to her, at the time she purchased the mortgage from him, that it was a first mortgage; such testimony is not admissible upon the theory that the transaction did not relate to the other mortgages, as the declaration that the witness' mortgage was a first lien was in effect a representation that the other mortgages were subordinate thereto.

A party to such action, who executed the bond and mortgage held by other parties thereto, and who was liable for any deficiency arising on the foreclosure of that bond and mortgage, is not competent to testify on behalf of the holders of his mortgage as to personal transactions with Nafis.

APPEAL by Pauline W. Squire, the plaintiff in the first aboveentitled action, from a judgment of the Supreme Court in favor of the defendants, Ella V. Greene and Maria S. Dunkin, entered in the office of the clerk of the county of Kings on the 16th day of November, 1898, upon the decision of the court, rendered after a trial at the Kings County Special Term, adjudging that the mortgage held by the said defendants is a first lien upon the moneys derived from the sale of the property described in the complaint in

the action.

Also an appeal by Artlissa V. Gearon, the plaintiff in the second above-entitled action, from a judgment of the Supreme Court in favor of the defendants, Ella V. Greene and Maria S. Dunkin, entered in the office of the clerk of the county of Kings on the 16th day of November, 1898, upon the decision of the court, rendered

38 431 $47 636

SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

after a trial at the Kings County Special Term, adjudging that the mortgage held by the said defendants is a first lien upon the moneys derived from the sale of the property described in the complaint.

Rush Taggart, for the appellant Squire.

Miles Gearon, for the appellant Gearon.

Jacob F. Miller, for the respondents.

CULLEN, J.:

For a detail of the facts of this case reference must be had to a report of the case on a previous appeal (32 App. Div. 258). The narrative is too long to justify incumbering the reports by a repetition. On the former appeal we held that the mortgage of the respondents was paramount in lien to those of the plaintiffs, and granted a new trial. On the second trial the learned judge at Special Term has followed our opinion and given judgment in favor of the respondents. The evidence in the present record is substantially the same as in the prior one, but on this appeal the appellants have raised a question which the former record did not present, and which threatens to overturn the whole edifice we erected by knocking from under it the foundation on which it rested. On the second trial the appellants objected to substantially all the oral evidence of the transactions out of which the mortgages in controversy or their respective priorities sprung, on the ground that the witnesses were disqualified under section 829 of the Code of Civil Procedure to give such testimony. The objection was overruled and the testimony admitted under plaintiffs' exception. It becomes necessary for us, therefore, to determine, first, whether incompetent evidence was admitted, and, second, if such evidence was given, then whether the judgment can be supported on the other evidence in the case.

The present holders of the three mortgages, over the relative priorities of which we have this controversy, each derived her title from William H. Nafis, who died prior to the commencement of these actions. Maria N. Anderson, as appears by the report on the former appeal, at one time held both the $3,000 mortgage, now owned by the respondents, and the $1,800 mortgage now owned by the plaintiff Squire. She assigned these to Nafis. Mrs. Anderson testified as a witness on behalf of the respondents to personal trans

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1899.

actions with the deceased Nafis relating to these mortgages. The appellants insist that Mrs. Anderson was not a competent witness as to these transactions, for the reason that the respondents trace their title from her. We think the objection is not well founded. The title of Mrs. Anderson is not in dispute and had ceased by assignment to Nafis, under whom all parties claim, anterior to the transactions out of which the controversy grows. She has no possible interest, nor do the respondents claim as successors to her rights. The exclusion of her testimony certainly does not come within the spirit of the section of the Code of Civil Procedure, nor in our view within its terms. If the action were for a piece of real estate, and dependent on the validity of a will, could it be seriously urged that a witness was disqualified from testifying to personal transactions with the testator by the fact that many years before he had owned the property in dispute?

The next objection occurs as to the testimony of the respondent Ella V. Greene. She testified in substance that, at the time of the purchase of her mortgage from Nafis, he represented that it was a first mortgage on the property. The objection to the competency of the testimony of this witness was plainly well taken. She was a party to the action, a witness on her own behalf and against the adverse parties who claimed under the deceased. The counsel for respondents justifies the admission of this testimony on the claim. that the transaction testified to did not relate to the plaintiffs' mortgages. This claim proceeds upon a fundamental misconception of the effect of this testimony. True, in the conversation between the witness and Nafis the mortgages of the plaintiffs were not mentioned, but the conversation was in substance that the respondents' mortgage was a first mortgage. Such a declaration was in effect that any other mortgages, those of the plaintiffs or others, were subordinate to that of the respondents; otherwise the declaration would have had no materiality. It did not weaken the effect of such a declaration that the mortgages of the plaintiffs were not named. The case of Lyon v. Whittaker (77 Hun, 107) is not in point. It was there held that a party might give evidence of a personal transaction with a deceased person from whom she claimed title, when the adverse party did not claim title through the same person. But APP. DIV.-VOL. XXXVIII.

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SECOND DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. here both parties claim from the deceased Nafis. Though the controversy may not relate to the title to the mortgages, but only to their respective priorities, a controversy as to priority may be as substantial as a controversy as to title. In this case the land has been sold, and all that remains is a fund in court, which is insufficient to satisfy in full either the respondents' mortgage or the two mortgages of the plaintiffs, and the party who loses priority in this litigation loses her claim.

The evidence of the witness Kearney, who testified to a personal transaction with Nafis, was also incompetent and improperly admitted. Kearney was a party to the action. He made the bond and mortgage for $3,000 which the respondents now hold. He is liable for any deficiency that may exist on a foreclosure of the mortgage. If the priority of the plaintiffs' mortgages is upheld he will be personally liable for the whole $3,000, while if the defendants' mortgage is awarded precedence he will be liable only for a small deficiency. Kearney was not called as a witness in his own behalf, but as a witness on behalf of the respondents. This does not relieve him from the disqualification of section 829. By the section he is excluded not only from being a witness in his own behalf, but from being a witness in his own interest, even though he is not a party to the action at all, or if a party, is called to give evidence on behalf of some other party whose interests are the same as his. The case of Redfield v. Redfield (110 N. Y. 671) is conclusive on this question. The husband of the plaintiff was called as a witness on her behalf to testify to a personal transaction with the defendants' testator. He was not a party to the action. It was held that he was incompetent to testify to the particular transaction, because if the wife succeeded in establishing her demand against the defendants the witness would be relieved from a claim that the wife might otherwise have against him on account of the same subjectmatter. (See, also, Miller v. Montgomery, 78 N. Y. 282; Church v. Howard, 79 id. 415; Sanford v. Ellithorp, 95 id. 48.) We are inclined to the opinion that the evidence of the defendant Patrick McCann, who testified to a personal transaction with Nafis, was incompetent for the same reason. McCann made the $1,200 bond and mortgage now held by the plaintiff Gearon. The effect of his evidence, so far as it had any effect, was to show that that

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