(dissenting):
After stating the facts of the case substantially as above set forth,. Judge Beapley proceeded:
The death of John hi. Stuart has deprived the case of the direct testimony which defendant, as well as he, might otherwise have-given, and some material facts requisite to the defense are found only in the inferences derived from circumstances, and in the circumstances themselves and their interpretation. The important facts are whether the deed made by the insurance company was taken really for the benefit of the defendant, and under an agreement between him and Stuart, to the effect that the defendant should retain control of the property, pay the amount required to-reimburse Stuart, and eventually have a conveyance made by the-latter to him of the farm, and whether the defendant did in fact pay him the amount so required to entitle him to the property.
The burden of showing that situation was on the defendant to divest the apparent title of the plaintiff derived from the deeds and the consequent right of possession which they seemed to afford. While-the intervention of the period of upwards of forty years has removed some of the guides and dimmed the way of inquiry, circumstances, have not within that time wholly failed to furnish some aid in reaching *123a conclusion in respect to tbe facts by which the rights of the parties are to be ascertained. The referee has found that the deed was taken by John M. Stuart from the Hudson Eire Insurance Company pursuant to an arrangement with the defendant, and for the benefit of the latter, and that by it the right was given to the defendant to repay Stuart the amount so by him secured to be paid, and retain and have the premises and the title to them. And that pursuant to such agreement the defendant paid the requisite amount to Stuart, and the latter received it and thereby the defendant became and was the owner of the farm in question having the equitable title to it. The evidence, as a whole, seems to be sufficient to support his conclusions of fact in those respects, and we hold that it is. ■ And without here fully relating the evidence and the deductions from it which lead to that result, reference is made to the well considered and somewhat elaborate opinion of the referee on those questions of fact, which is adopted and approved.
There are some circumstances appearing which in no manner east any unfavorable reflections on the conduct or purpose of Mr. Stuart; and which indicate a reason why the defendant may not have desired a conveyance from him for some years after the alleged transaction which vested in the latter the right and equitable title to the premises, which takes from the omission of the defendant to seek and obtain a deed, some of its force as evidence against his claim.
The remaining questions arise on the exceptions taken by the plaintiff on and after the trial. The defendant testified that on the 16th or llth day of November, 1842, he deposited a package of gold in the express office at Rochester; that it was addressed in writing and he had not seen it since (and it subsequently appeared in the testimony that it consisted of 217 sovereigns). He was then asked by his counsel, “ to whom was it addressed ? ” The plaintiff’s counsel objected on the grounds : 1. That it being in writing must be produced. 2. Unless it was addressed to John M. Stuart it is immaterial, and if it was so addressed it is incompetent as it was a personal transaction with him, deceased. The objection was overruled and exception taken. The answer followed, that “ it was addressed to John M. Stuart, of Ereeland, Hoffman & Co., or in care of Ereeland, Hoffman & Co., for John M. Stuart.” It *124having then appeared that Stuart was dead at the time of the trial, it is insisted on the part of the plaintiff that the question called for a personal transaction between the defendant and John M. Stuart, and the evidence was therefore incompetent under Code Civil Procedure, § 829.
The question is not entirely free from difficulty. To say that the witness sent to Stuart the package would seem to import a transaction between them. Here he described one delivered to the express company, and that description included the address written upon it. The fact of the delivery to the company, and the description of that delivered, was competent and any direction given to the agents or servants of the express company at the time does not seem to come within the inhibition of the statute, as it can be treated only as a communication to it. The question here is whether the address was a communication to, or related to, a personal transaction with Stuart by the witness, or was merely a direction to the express company. It was the latter; but was it anything more ? So far as appears the package contained no communication to Stuart, or any person, and may be distinguished to that extent from a letter having a superscribed address. The delivery of the package to Stuart would consummate or produce a transaction between him and the defendant." T3ut testimony which might, in effect, as evidence, bear upon a fact involved in a transaction with another might be competent, although the witness would not be permitted to testify concerning a personal transaction with such person. (Pinney v. Orth, 88 N. Y., 417, 451.) The delivery of a parcel to one with direction to deliver it to another person, might, if the direction be afterwards executed, operate in effect as a transaction between the two by means of the intermediate act of the third. Yet it would hardly seem that such direction would be treated as a personal transaction between those two persons. After it was delivered to the express company the defendant exercised no control over the parcel. The company had the custody of it with his directions accompanying it in respect to the destination the company should give to it. The address had no other purpose. The effect was the same and no different from what it would, have been if the direction had been orally given.
The personal transacción with Stuart was the delivery to him, *125which, if bad, was by tbe agent of tbe company. Nor was tbe address a personal communication by tbe defendant to Stuart. It conveyed no information as distinguished from the fact of delivery by tbe company, nor is it important whether it was written by tbe defendant or by tbe company pursuant to bis directions to deliver it. It was matter of identity and of guide to tbe company as carrier. (Hill v. Heermans, 22 Hun, 455; affirmed sub nom. Wadsworth v. Heermans, 85 N. Y., 639.)
Tbe evidence offered does not come within the statute, and tbe plaintiff’s exception is not supported by Pease v. Barnett (30 Hun, 525): Wilson v. Reynolds (31 id., 46); Koehler v. Alder (91 N. Y., 657); Holcomb v. Holcomb (95 id., 316).
It subsequently appeared by other evidence on tbe trial that tbe gold was shortly afterwards in tbe possession of Stuart at the store of the firm, and that by letter in tbe handwriting of Stuart, of date, New York, November 18, 1842, addressed to tbe defendant and subscribed “ F., H. & Co.,” it appeared that 217 sovereigns were received. There was some importance given upon tbe trial to tbe fact whether the package went pursuant to defendant’s direction to tbe firm, or to Stuart individually, and in that view tbe address upon it was deemed material. It was desirable to tbe defense that it went to him individually, because it was claimed on tbe part of the defendant that $750 of that gold coin was received by Stuart as payment of that amount of the purchase-price of tbe premises, and the referee so found.
Tbe testimony of one Bowman, then clerk of the firm, was to tbe effect that be was present at tbe store in New York in tbe latter part of November, 1842, when a package of money was received there by Stuart, who opened it, and on being asked by the witness where it'came from, answered that “it came from Patterson to pay for bis farm,” and tbe witness adds that it was in tbe neighborhood of $800 in gold.
The tendency of this evidence and some other circumstances, is to show that tbe money was received by Stuart, and that- $750 of it was so applied by him, and without the aid of the testimony given by the defendant of the address on the package, was sufficient to support the conclusion of the referee in respect to such application of that amount of it.
*126In September, 1868, the defendant received a letter from Mrs. Stuart, by tbe terms of wbicb she treated him as having had the •agency of the farm and suggested that her son was ready to take possession.
After the receipt of the letter the defendant had an interview with her; and, when asked to state the conversation, the plaintiff objected that it was inadmissible and incompetent, the objection was overruled “as to her,” and exception taken. Mrs. Stuart was not a party plaintiff on the record, but she was a oestui que trust in the deeds referred to, and by tbem was given the income during her life of the property conveyed, in which was included this farm. She had written him the letter assuming that the title had passed by the deeds to the trustee.
The defendant met her, and in reply to the letter made to her an oral statement of his claim in respect to the premises. Her apparent relation to the farm or the income of it justified her letter and permitted, if it did not require him to make the explanation and give the information he did to her. And the reception of that statement in evidence was a qualified one. It was received as to her only.
The statement so made by him furnished no evidence in the action of the facts stated, but was a mere assertion of a claim when his right was challenged by a person having an interest in doing so, and an apparent interest in the use and proceeds of the property. It may be treated as a statement in reply to assertion of right adverse to that, which he claimed to the premises, and further than that it had no importance or materiality for any purpose. If it be assumed that this evidence was incompetent because Mrs. Stuart was not a party to the record, it cannot be assumed that any effect was given to it by the referee as against the plaintiff, but the contrary, as it was not received as against him, and to that extent the situation is different from what it would have been if the trial was before a jury. And even then the direction given them by the court to disregard it would be effectual to cure the error, if the other evidence is sufficient to support the verdict. (Mandeville v. Guernsey, 51 Barb., 99; Stone v. Frost, 6 Lansing, 410.)
The review of trials before referees brings to the consideration the case upon the evidence as a whole as distinguished from a review on exceptions only. And technical errors which it can *127fairly be seen did not prejudice the party in tbe result will not be made grounds for granting new trial, nor unless there are probable grounds to believe that injustice has been occasioned by them. (Crary v. Sprague, 12 Wend., 41.)
The ground of objection is general, and although such objection may be sufficient where it could not be obviated if specifically made, jet that rule is not universal. (Levin v. Russell, 42 N. Y., 251, 255, 256 ; Daly v. Byrne, 77 id., 183, 187.) It may be and it would seem that for the time being the referee had the impression that Mrs. Stuart was a party, and when he overruled the objection as to her, if the ■objection that she was not had been specified, the question may have been withdrawn or the objection sustained. The plaintiff was fairly required, under the circumstances, to suggest the reason specifically if that was the ground he had in view. (Ward v. Kilpatrick, 85 N. Y., 413, 417.) The objection and exception as taken ■do not support error nor justify its predication upon them.
The testimony given by the defendant of the arrangement between him and the' insurance company, giving him the opportunity to purchase or cause to be conveyed the premises to such other person as he might name for a specified consideration, was properly received in view of the evidence which followed relating to the part he took in procuring the deed to Stuart, and to the purpose for and the arrangement under which it was taken, out of which arose the defendant’s alleged right to reimburse him and have the property.
The exceptions to the conclusions of fact and law of the referee are not, nor is any one of them well taken. And the propositions he refused to find, so far as material, are inconsistent with his findings as made. The exceptions to those refusals do not, nor do any others taken on the trial, require further consideration.
The judgment should be affirmed.
Haioht, J., not sitting.Judgment reversed and a new trial ordered before another referee, with costs to abide the event.