Tbe only questions in this case deserving consideration are presented by exceptions to certain rulings of tbe referee, admitting testimony offered by the plaintiff.
Tbe testimony of tbe plaintiff’s witness, Losee, as to declarations made by the defendant’s son William, was received conditionally, on tbe statement of tbe plaintiff’s counsel, that be expected to show that William was acting, at tbe time, as tbe agent of tbe defendant. That expectation was not realized. There was no evidence in tbe case that tbe defendant authorized bis son to procure a deed to be drawn. Tbe bare fact of bis subsequent acceptance of tbe *183deed is no evidence of a prior authorization, nor does it appear that he accepted with knowledge of his son’s declarations. Besides, the defendant and his son testified that the latter had no authority from his father to procure the deed. The testimony was, therefore, improperly received, but as the whole case is before us, and not the exceptions, alone, it is proper to inquire whether the testimony in question prejudiced the defendant. (Crary v. Sprague, 12 Wend., 41; Beebe v. Bull, id., 504; Cameron v. Irwin, 5 Hill, 212; Watson v. Campbell, 38 N. Y., 153; Porter v. Ruckman, id., 210.) The declarations testified to had no possible bearing on the question of payment, which was the only issue in the case. The testimony of Losee, that the son told him he need not be particular to read the deed to the old man (the plaintiff’s assignor), if uncontradicted, may have affected the credit of the son, who was afterwards called as a witness for the defendant, but to make it admissible for that purpose it was not necessary to show that the son had authority to act for his father, and the attention of William was called to it when he was on the stand, and he fully contradicted it. On the whole, were this the only testimony the admissibility of which is questioned, I should hardly be prepared to say that it constitutes a substantial ground for reversal.
But another item of testimony elicited by the plaintiff’s counsel, from the witness Losee, presents a more serious question. The witness was permitted to testify, in the face of an objection, that when the old man (Leonard Trimmer) executed the deed, he said to the witness that he had not got his pay for the land, but Zachariah had agreed to pay him when he wanted it. It did not appear that the defendant or his son William was present at the time when the declaration was made. The plaintiff’s counsel claims that the declaration was a part of the res gestee ; not so, it was merely a casual conversation between the grantor and the scrivener, having no necessary connection with the act of signing or delivering the deed, and no legitimate tendency to characterize or qualify the deed, in the face of the written declaration contained in it that the consideration was paid. The res gestee were the transactions between the parties to the deed; and the words which passed casually between the grantor and the scrivéner, who in no way represented the grantee, were no part of them. The testimony was clearly *184inadmissible. Was it prejudicial to the defendant ? It could hardly have been otherwise ; it bore directly upon the very point in controversy, and although the grantor was afterwards called as a witness and gave testimony of the same import as his declarations, yet it is impossible to say that his testimony did not, in the judgment of the referee, derive credit and corroboration from the declarations themselves. We see no way of avoiding the conclusion that the reception of this item of evidence was erroneous.
Judgment reversed and a new trial ordered before another referee, with costs to abide the event.
Mullin, P. J., concurred.