The statement of the trustee was not made contemporaneously with the acts therein mentioned. It was not, therefore, a part "of .the res gestae, and if does not in anyway relate to a matter of public interest. It is a private document, the admissions in which are competent evidence against the maker, but not, ordinarily, evidence against a stranger to it. ; .
At the time it was made there was no dispute about the amount that the trustee had received from the executors of the Shoe-maker estate. He had receipted therefor, but had transferred the legal title to the personal and real property so received by him. The trustee was in ill-health and ab(qut to depart from this country, to which it was doubtful whether he would ever return, and the> statement was made by him in explanation of acts on his part in disregard of the trust and essentially in his interest. f The statements relating to the securities that had been transferred or purchased and held in the name of his wife were not: incidental to the admissions of the trustee against his interest. Such statements constituted the material part of the paper, and the statements against the interests of the trustee' were incidental thereto. To allow such a statement as affirmative evidence against a person not a party theréto, and who had never seen or acquiesced therein,. would extend an exception to the admissibility of hearsay evidence beyond any case that has come to my notice, and would make a dangerous precedent.
Such a statement does not come within the rule stated in article 28 *21of Stephen’s Digest of Evidence, mentioned in the opinion at Special Term (Putnam v. Lincoln Safe Deposit Co., 39 Misc. Rep. 738, 741).
Judgment appealed from reversed, referee discharged and a' new hearing granted of the matters directed by the interlocutory judgment to be tried, with one bill of costs to appellants to abide event.