(dissenting) :
I am unable to concur in the opinion of Mr. Justice Burr. The suggestion that the allegation of the petition that John T. Pirie is a creditor of the decedent to the amount of $325 and interest from December 17, 1896, is a mere conclusion, does not strike me as having force. It is clearly a statement of a fact. He says the decedent owes him the sum of $325 and interest from a certain date. What more can he do ? He is not obliged to plead his evidence, to say that he owes him $325 on a promissory note, and to set out the note; he complies with the requirement of section 481 of the Code of Civil Procedure, that he shall make a “ plain and concise statement of the facts constituting each cause of action without unnecessary repetition,” when he says that the decedent owes him $325, and if this statement is challenged, then he is to produce the evidence of the debt. The court acquires jurisdiction under the provisions of sections 2472 and 2749 of the Code of Civil Procedure if the petition sets forth any item of indebtedness due from the decedent, stating the amount and to whom the same is owing (Matter of German Bank, 39 Hun, 181, 185), and clearly this allegation of the petition is sufficient for this purpose. But it is urged that the proof is fatally defective ; that if the validity or amount of a claim is disputed the surrogate must determine this (Matter of Haxtun, 102 N. Y. 157), and that the evidence in support of the claim does not meet the requirements.
It seems" important to an intelligent discussion of the question that we get the true situation of the parties and see what questions are open to consideration here. Questions of importance, under some considerations, become purely academic under other circumstances. Adele M. Downing died in September, 1905, leaving a last will and testament. She was at the time of her death seized *436In fee of the real property described in the petition, .which petition was made under the provisions of title 5 of chapter 18 of the Code of Civil Procedure, and is a special proceeding for the purpose'óf selling real estate to pay debts. This real estate was subject to a mortgage made by decedent in 1892, which mortgage is now held by Meyer Jacobs. Under decedent’s will this real' estate was devised to her daughter-in-law, Elizabeth A. Downing, who was ■ made sole executrix of the will. ... She did not advertise for claims against the estate, and in July, 1907, filed' an account showing that ' decedent’s personal estate^ was insufficient to pay either her debts or her funeral expenses. On the 16th day of December, 1905, Elizabeth A. Downing, as sole devisee under the will, sold and conveyed the premises in question, subject to. the mortgage now held' by Meyer Jacobs, to the appellant, Raphael Krasnow. In this transaction Elizabeth A. Downing took back á purchase-money mortgage, which she subsequently assigned to the respondent,- Moses L. Parshelsky. . .
The petitioner, as I have already suggested, instituted this special proceeding for the purpose of procuring the sale of the real estate described in liis- petition, and I think it is clear that he stated all of- • the facts' required by the statute to give jurisdiction to the surrogate. This- special proceeding was instituted within .three years from the time that letters, were issued to Elizabeth A. Downing ás sole executrix under the will, and the law is well established that during a period of three years the creditors of -a decedent have a kind of statutory lien 'upon the real- estate left by him, and' that such real estate cannot be so aliened by liis heirs or devisees during that time as to defeat the claims of creditors thereon (Platt v. Platt, 105 N. Y. 188, 197), and that an intending purchaser of real estate is bound to know that the real estate is subject to the payment of a decedent’s. debts within three years from the probate of the will. (Olyphant v. Phyfe, 18 App. Div. 1; affd. on opinion below, 166 N. Y. 630, 631.); It is apparent, then, that the appellant, Krasnow, and the respondent, Parshelsky, having acquired their rights under the period that the real estate was subject to this lien, took subject to this lien, and they, are in no better position and have no greater rights than belong to Elizabeth A. Downing, as sole devisee under the will.
*437Both Elizabeth A. Downing and Krasnow answered the petition, making a general denial of the material facts and setting up the Statute of Limitations, and upon the trial the petitioner offered in evidence a mortgage made by the decedent, Adele M. Downing, to Eliza J. McCormack, under an assignment of which he claimed. Mr. Wiessner, appearing for Krasnow, objected to this as immaterial, irrelevant and incompetent, and as not binding upon the respondent Krasnow. The objection was overruled and an exception taken, but it is now conceded that this mortgage, being recorded, must be presumed to have been properly acknowledged, and, therefore, competent evidence of any. fact which it tended to prove. Then counsel for petitioner offered “ Also the second of the two notes mentioned in the mortgage just offered in evidence.” ■ Mr. Wiessner objected to this as “immaterial, irrelevant and incompetent, as not binding on these respondents, and as. incompetent under section 829 of the Code,” and moved “ to strike out the characterization as the second ■ note referred to in the mortgage.” The objections were overruled and the motion denied, exceptions being noted. This was the only objection raised in behalf of Krasnow, but Mr. Reiter, appearing for Elizabeth A. Downing, also objected, “ as incompetent and immaterial, the making of the note not being sufficiently proved.” This was overruled, with an exception noted. Mr. Wiessner and Mr. Reiter were making separate objections and taking exceptions, in one case it being stated in the minutes that the same objection was taken by both counsel for respondents, and it may be fairly questioned whether a separate objection and exception taken in behalf of Elizabeth A. Downing, who does not appeal, is available for Mr. Krasnow. When his counsel stated his objections to the admission of the note as immaterial, irrelevant and incompetent, as not binding on these respondents, and as incompetent under section 829 of the Code, he must be deemed to have stated all the objections which he desired to urge, and, as none of these i's available here, it is difficult to understand what grounds he has for urging objections which he did not raise. It might be, under an understanding appearing in the record, that-objections stated by one party would be sufficient to raise the question for all whose interests were the same, but nothing of the kind appears in the record. On the contrary, the attitude of counsel *438appeared to be to look after the special interests of their own clients, and Mr. Wiessner made no remark to indicate that he desired to raise the same question for his client, and.having specifically pointed-out the grounds of objection which he desired to make, he must be deemed to have waived all other objections. (Tooley v. Bacon, 70 N. Y. 34, 37; Friedman v. Breslin, 51 App. Div. 268, 270, 271.) Under somewhat similar circumstances, the court in Varnum v. Hart (6 N. Y. Supp. 346, 353, Barker, P. J., writing for a unanimous court) says : “The defendant Hart- had ample.opportunity to renew an objection in his own behalf, before the witness gave the objectionable evidence, and, as he. failed to do so, or to-move to strike'out the evidence after it had been received, it is to be presumed that by his silence he was willing that it. should remain in the record.” Clearly, where parties appear by sepiarate counsel, after answez-ing separately, and the' record shows no understanding that objections taken on behalf of one party are to be considered in the case for the benefit .of another, and where it appears that both counsel are on guard, and make their own objections, why should a party appealing be given the benefit of an- objection taken in behalf of a party who does not appeal ? - .
Concede that this is a technical point. So, likewise,, is the- objection attempted to be znade use - of to defeat what is, in all probability, a meritorious claim. Wigznore on Evidence (§ 2596) says: “ In probably most instances where a document is material- under the pleadings, or is evidentially used, its genuineness is not doubtful. Yet the proof of that genuineness may be onerous and expensive. * *' * It would, therefore, be the part of common sense to recognize the needs of the situation by some expedient for facilitating the proof. The appropriate remedy seems- naturally to lie in securing some sort of judicial admission, by rule of pleading or otherwise, where the circumstances justify it.” . He then points out ' an early English rule,, with various statutory provisions designed for meeting just such a situation as was here presented to overcome the rule, that writings do not prove theznselves. The English rule- cited required the adverse party to concede the genuineness of the writing, or to take the risk of paying the expense of proving the samé if the evidence justified a finding that it was. genuine, a rule that might well be adopted in the practical administration-of the-law, giving *439the adverse party, of course, an opportunity to examine the paper a reasonable length of time before it was offered. As a bad answer is good' against a bad complaint, so a technical rule is good as against a technical objection.
Assuming, however, that the exception taken by Elizabeth A. Downing is available to the appellant, I am persuaded that upon the merits reversible error is not presented. The mortgage was concededly proper and competent evidence; no one is questioning this here. This mortgage was but a part of a single transaction. The remainder of the transaction was evidenced by two promissory notes, one of them for $500, being payable in six months, and the other for a like amount, being payable in eighteen months from the date of the mortgage and of the note, these facts being recited in the mortgage. As a mortgage is but an incident to the debt which it is intended to secure, the logical conclusion is that a transfer of the mortgage without the debt is a nullity, and no interest is acquired by it. The security cannot be separated from the debt and exist independently of it. (Merritt v. Bartholick, 36 N. Y. 44, 45, and authorities there cited; Bloomingdale v. Bowman, 21 N. Y. St. Repr. 247; Manne v. Carlson, 49 App. Div. 276, 278; Smith v. Thompson, 118 id. 6, 7.) The mortgage and the note being in contemplation of law inseparable, it was iricumbent upon the petitioner, the allegation of indebtedness being denied, to show-an assignment both of the mortgage and of the note which it was given to secure, and a part of his case depended upon his possession, of right to possession, of the evidence of debt, and this was preliminary to the offering in evidence of the “ assignment of mortgage and note which have been offered in evidence, made by Eliza J. McCormack to John T. Pirie.” It will be remembered that this mortgage was made and delivered by A dele M. Downing to Eliza J. McCormack, and was given to secure two notes of $500 each made by the party of the first part to the party of the second part, one payable in six months from date and the other payable in eighteen months from date, with interest on each, and that the assignment of the mortgage and note was made by Eliza J. McCormack, the mortgagee, to John T. Pirie, the petitioner, so that the physical possession of the mortgage, duly acknowledged, reciting the making and delivery of the notes, together with *440the possession of one of these notes, accompanied by the assignment of Eliza J. McCormack, was the fulfillment of the law. The note in question came by assignment and delivery from the hands of Eliza J. McCormack, who was, by the recitals of the mortgage, entitled to the ownership and possession of the note and the mortgage ; the two papers were a part of a single transaction, the collateral obligation referring specifically to' the primary obligation, and the two never having parted company in fact, as they could not in law, where is the defect in proof; where is the error of which any one can complain ? The suggestion that “ the note which the mortgage was given to secure may be in the hands of another person, for there may have been more than one note given by Adele M. Downing on February 1, 1892, payable eighteen months from date, or the note offered in evidence may have, been one given by a person of similar name, or it may have been a forgery,” seems to me wholly without force under the circumstances herb presented. Concededly Eliza J. McCormack was the owner of the mortgage, and that ownership was a mere nullity, except in connection with the ownership of the note. Indeed, the mortgage recites that she was entitled.to the note. She was, then, the owner, and holder of this note for value,, and in connection therewith she owned the mortgage. Being 'the owner and holder of the debt, with the collateral, she concededly parted with the ownership of both in the assignment to the petitioner, and to raise any question about the genuineness of this note we must presume that Eliza J. McCormack, owning and holding this note, deliberately perpetrated a fraud upon the petitioner by delivering to’him a spurioiis note in connection with a valid mortgage, or that the petitioner, being the owner of the mortgage and the note under a valid assignment from Eliza J. McCormack, has undertaken to substitute a forged note for the genuine one which he owned, and every presumption of law is against any . such conclusion. Gessante rationeiegis cessat ipsa lex. (Broom Leg_ Max. [4th Am. ed.] 133.) It is one thing to say that a writing does not prove itself, and quite another to say that a paper which represents a part of a single transaction, and which is a necessary part of the evidence of that-transaction, which is fully described in a writing constituting the contract under which the first paper was made and delivered, and which is found in the same possession, under a valid *441assignment, is not proved because no one has testified to the signature on such paper. The rule is laid down by Wigmore (§ 2132) that when the. execution of a document is not in issue, but only the contents or the fact of the existence of a document of such tenor, no authentication is necessary, and this rule would seem to cover the present case. The mortgage recites the existence of a certain note, describing it. The petitioner presents the mortgage ■ and the note corresponding with the description, shows an assignment of these two writings, .joined in law, and yet we are asked to hold that this note was not sufficiently proved; that it was error to admit it as showing a debt due to the petitioner. The executrix under the will of Adele M. Downing is not here complaining that the debt is not properly proved against the estate, and I do not think it is the law of this State that the evidence in this case is incompetent or immaterial, or that it is necessary to have direct testimony" to the genuineness of a promissory note produced under such circumstances. It seems to me like a mere quibble, raised by one who has no standing to raise it, because he did not raise the question in the court below.
I think the decree of the Surrogate’s Court should be affirmed.
Decree of the Surrogate’s Court of Kings county reversed, with costs.