(dissenting) :
I think the verdict is sustained by the evidence.
The decedent on the 15th day of May, 1903, gave his check for $4,000 to. the order of the defendant, who indorsed it over to a .creditor of the creamery company, of which the defendant was president. The evidence tends to show that Mr. Young originally intended to loan the money to the creamery company, accepting a mortgage as security for ■ that indebtedness. The defendant had charge of the business and did not make a loan for Young to the company.
Wiley, the secretary of the company, in narrating the transaction with the defendant, testified: “ The fact was said that we were to give him notes; that is all he asked me for, and if my memory serves me correctly we gave him notes for the full amount of the $4,000, and- some other bills that he had paid. At our meeting at the time that this business was done, Mr. Anthony talked with me ■about it and he. said, that all he would ask of the creamery com"pany" was to give him their notes for security, I don’t remember that anything further was said. It was said for the full amount. Mr. Anthony said it. He said we could- give him notes for the amount of the money that he had got for us to pay- .our indebtedness. The original amount was $4,000. There were some other matters besides that.”
This transaction was more tlian two" months before" Mr. Young ' died, and there is no suggestion that the note for $4,000 was payable to him or that it was ever delivered to him. Whatever, therefore, may have been the original purpose about the mortgage, the defendant has ended that defense, although submitted to the jury, *617by individually accepting the note of the company for the money and never transferring it to the plaintiff or Young and not producing it on the trial, and there is ho pretense that the company ever, gave any mortgage;
The administratrix is friendly to the defendant and a witness in his behalf. If the note had' been delivered by the defendant to her husband, it would have been in her custody. The defendant was a competent witness to dispute the testimony of Wiley as to the giving of the note. He was a witness in his" own behalf, narrating certain transactions with Wiley and pertaining to the creamery company, but abstained from any reference to these notes.
His position on the trial was that no loan to any one was made by the old gentleman, but the $-1,000 were given to him. The administratrix was a witness for him- on this subject and not- as to whether the security taken belonged to her husband. The testimony of Wiley that the defendant told him he was acting for Mr. Young is contradicted by the defendant. The evidence accordingly is-undisputed that the defendant accepted a note or notes-for more than $4,000 of the creamery company; that these notes represented the debt of Williams, for constructing the company building and other obligations which the defendant had paid; that the note or notes were delivered' over to the defendant and retained by him, or, at least, were never transferred to Mr. Young. It is claimed that Wiley did not testify to whose order these notes were payable. He said tlié notes were given to the defendant and that the defendant wanted them given to him. Language could not be plainer.
This is especially decisive in view of the fact that the defendant did not produce the notes, did not contradict Wiley, and claimed as his defense on the trial that Mr. Young in his tottering old-age absolutely made the defendant a present of this large sum of money. There .is nothing in the relation of these 'people to warrant the inference that Mr. Young diverted $4,000 of his estate .from his only child and gave it to the defendant, and there is no necessity for straining to aid the accomplishment of any such purpose.
. There is abundant evidence to sustain the verdict of the jury that this money was loaned to" the defendant. This proposition was fairly submitted. There is only one exception calling for attention. Hpon-the direct examination of Mrs. Young the defendant’s counsel *618made this offer: “ I offer to.show that for a number of years prior to the death of John .Young, plaintiff’s intestate, that the defendant in this action had assisted from time to time his uncle' John Young J If the evidence hinted at in the offer was competent at all it was because it bore somewhat upon the probability of the. gift. Counsel saw lit to embody his proposed evidence in an offer, and the offer must be definite and unambiguous. . (Daniels v. Patterson, 3 N. Y. 47, 51; Hellreigel v. Manning, 97 id. 56, 60, 61.)
The- offer was not sufficiently specific. Whether the defendant “ assisted ” Young was unimportant. In order to "make the evidence material it' should appear that the assistance was rendered gratuitously. The offer, which must be assumed to include all the defendant could prove, simply ends with the proposition that the defendant did favors for and assisted the old gentleman. The character of the assistance and the favors, their extent, and whether performed with 'the expectation of payment, or whether in fact paid for, are not embodied in the offer, and these various omissions may have induced the court to exclude the evidence.
The judgment should be affirmed, with costs.
Bobson, J., concurred.
Judgment and orders reversed and new trial ordered, with costs to the appellant to. abide "event.