[1] On the question of the admissibility of Paul's evidence on this accounting, we have the fact that Maurice, as coadministrator, and the three sisters, are seeking to recover these securities for the estate. Paul concedes that the money which purchased the securities was the money of his deceased brother. The fact of the payment of dividends and interest to the decedent to the date of his death is not in dispute, and the declarations of Paul as to his brother's ownership on the income tax deposit slips are produced before the court. Paul seeks to establish a gift inter vivos, by his own testimony that the decedent gave the securities to him. Whatever may have been his status before Surrogate Ketcham in the original proceeding, it would appear that he is now asserting a claim adverse to the estate, and seeks to support it by his own evidence as to personal transactions with the deceased. This he cannot do under the prohibition in section 829 of the Code. The cross-examination of Paul before Surrogate Ketcham, necessitated by the allowance of such evidence in that proceeding, cannot be availed of as removing the bar, under the stipulation of the parties, where a clear case for its rejection is made out. This evidence being excluded, there was no issue as to the ownership of the securities with which the appellant has been surcharged. [2] Maurice Atkinson and his sisters appealed from the surrogate's decree in so far as it granted an allowance of counsel fees to the administrator Paul in the removal proceeding, but this appeal was abandoned, and was not argued before this court. It is therefore dismissed, without costs. Decree of the Surrogate's Court of Kings County, so far as appealed from, affirmed, with one bill of costs to respondents Maurice Atkinson, administrator, Rose S. Marston, Mary J. Waterman, and Grace A. Spencer, to be paid from the estate. All concur. (191 App. Div. 875) PEOPLE v. WANSKER. (Supreme Court, Appellate Division, Second Department. May 21, 1920.) 1. Criminal law 419, 420 (6) —Declarations of deceased before crime held inadmissible. Testimony as to declarations of deceased, several days before killing, that defendant was a desperate woman, and that he was afraid of her, were hearsay and inadmissible. 2. Criminal law res gestæ. 366 (2)-Declarations of deceased before killing held not Declarations of deceased, several days before he was killed by accused, that accused was a desperate woman, and that he was afraid of her, were not admissible as a part of the res gestæ in a prosecution for homicide. 3. Homicide 192-When character of deceased has been proved, defendant's character admissible. When the plea is self-defense, and the defendant has been permitted to offer evidence as to the character of the alleged aggressor, or the traits of violence natural to the aggression, the prosecution may offer like evidence concerning defendant in rebuttal. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (182 N.Y.S.) 4. Homicide 163 (1)—Indecent assault on accused raised no issue as to character of deceased. In a homicide case, testimony of defendant that deceased had made an attack upon her, and that she fired in defense of her chastity, did not make an issue as to the character or reputation of the deceased, which would warrant the state in introducing character evidence concerning accused in rebuttal. 5. Homicide of defendant. 163 (1) -Declarations of decedent not evidence of character Declarations of decedent, several days before being killed, that defendant was a desperate woman, and that he was afraid of her, because she was likely to do almost anything, could not be regarded as evidence as to the character of the defendant. 6. Witnesses337 (2) -Defendant did not put general character in issue by taking witness stand. By taking the witness stand, accused subjected herself to attack upon her credibility, but did not put her general character in issue. 7. Homicide 163 (1) -Defendant, testifying that she shot deceased in defense of her chastity, did not put her character in issue. In a homicide case, where defendant testified that she shot deceased in defense of her chastity, she did not thereby put her general character in issue, so as to give the state the right to introduce character evidence in rebuttal. Appeal from Trial Term, Kings County. Rebecca Wansker was convicted of first degree manslaughter, and appeals. Reversed, and new trial granted. See, also, 108 Misc. Rep. 84, 177 N. Y. Supp. 295. Defendant appeals from a judgment rendered June 5, 1919, convicting appellant of the crime of manslaughter in the first degree, upon an indictment charging murder in the first degree, for shooting and killing Samuel Silverberg with a revolver on April 7, 1919. The appellant, Mrs. Rebecca Wansker, 44 years old, owned a house at Coney Island, which she had leased to Silverberg, the deceased, reserving the right to occupy certain rooms during the winter months. Disputes between them arose during the 1918 occupation. On March 3, 1919, about a month before the killing, Silverberg tried to reoccupy the leased premises. There was a refusal to let him enter, so that he resorted to police aid to obtain admission. He continued to live in this house, with the defendant occupying certain rooms, but there were proceedings to dispossess one another. The fatal affray started at the bathroom entrance. The prosecution showed that, as Silverberg came into the hallway, appellant fired at him a revolving pistol which she carried on her person. It is not disputed that her second shot pierced the heart, causing Silverberg's death. Appellant's plea was self-defense; that she was defending her chastity. Her version was that, when Silverberg attempted to assault her by the bathroom door, she fired twice in resisting him. A certificate of reasonable doubt was granted (108 Misc. Rep. 84, 177 N. Y. Supp. 295), but appellant could not give the bail required, and so remained in prison. Argued before JENKS, P. J., and MILLS, RICH, PUTNAM, and BLACKMAR, JJ. Joseph A. Firpo, of Brooklyn, for appellant. Harry G. Anderson, Asst. Dist. Atty., of Brooklyn (Harry E. Lewis, Dist. Atty., of Brooklyn, on the brief), for the People. JENKS, P. J. The defendant, a woman 44 years old, was tried upon an indictment for murder in the first degree for shooting Silver For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes berg to death on April 7, 1919, and was convicted of manslaughter. Her plea was self-defense. She testified that, as she went to the bathroom common to the house where she and Silverberg lived, Silverberg attempted to force her to an act of sexual intercourse, she resisted, and in the struggle she fired the fatal shot from a revolving pistol which she carried on her person. The people called Gussie Tonjes as a witness in rebuttal. She testified that on or about April 5, 1919, she talked with Silverberg, the deceased, in her shop in the borough of the Bronx, but the defendant was not present. "Q. What did Mr. Silverberg say to you? A. He asked me to come out and live with him for a few days; it wouldn't cost me anything, because his landlady expects to move out, and to be sure that will get nothing on him, I should be there to testify in case she would try anything against him, because she is always trying to frame him up; and I told him that I will be out there Sunday-that will be April 6th-because I am going to a welcome home party, and I will come over to see them; so I did. Q. Just the conversation between you and him. A. Well, he told me that Mrs. Wansker, his landlady [the defendant], expects to move out Tuesday, and that he wishes that I will come out and only stay for a couple of days with him, until she is out of the house, because she is a desperate woman, and he is afraid of her, because she is liable to do most anything." This testimony had been met by objection, exception, motion to strike out, and exception. I think that the admission of this testimony of the statements of the deceased was error. [1, 2] 1. The statements were not evidence. They were hearsay, and were not within any of the exceptions to the rule against hearsay. Of course, the statements were not a dying declaration, because they were made two days before the homicide. The statements were not the declarations of a party. "The person injured, or the acting prosecutor, is not a party; therefore his utterances out of court are hearsay. He may be called as a witness, whereon, if his testimony differs from his declarations in pais, they may be shown to discredit him. If he is dead, the evidence is lost, the same as when any other witness dies." Bishop's New Criminal Procedure, vol. 2, p. 928. The principle of res gestæ did not apply. The character of the deceased was no part of the res gestæ. Greenleaf on Evidence (15th Ed.) vol. 3, § 27. Further, the words neither explained nor accompanied any act which was related to the defendant. Greenleaf on Evidence (15th Ed.) vol. 1, § 108. In the note to this section it is said: "It follows that, if there is no act with which the declaration can be connected, they are not admissible." See, too, Tilson v. Terwilliger, 56 N. Y. 273, 277. "But declarations prior to the crime, forming no part of the res gest of a relevant act and not communicated to the accused, or, if known to him, not acquiesced in, or statements and accusations by deceased which are narrative in their form and character, and inadmissible as dying declarations, are generally rejected." (182 N.Y.S.) Wharton on Criminal Evidence (10th Ed., Hilton) § 225, after stating the principle, writes: "Hence, on an indictment for murder, declarations of deceased before his death that he was about to disappear, or that he expected violence, * are inadmissible." See, too, Cheek v. State, 35 Ind. 492, and authorities cited. Aside from being naked words, the statements are not related to the homicide. Montag v. People, 141 Ill. 75, 30 N. E. 337; Weyrich v. People, 89 Ill. 90, and cases cited. [3, 4] 2. Even if the testimony as to these declarations was evidence, the evidence was not admissible in this case. It was offered and received in rebuttal. When the plea is self-defense, and the defendant has been permitted to offer evidence as to the character of the alleged aggressor for violence, or the traits of violence natural to the aggression, under the rule of People v. Rodawald, 177 N. Y. 408-423, 70 N. E. 1, then the prosecution may offer like evidence in rebuttal. But the defendant had not made an issue as to the character or reputation of the deceased, either because she had testified to the violent act, which she resisted, or by the offer of any evidence as to the reputation or character of the deceased. Hence there was no issue that made the evidence in question admissible as rebuttal, and it was not admissible as part of the people's case. See Wigmore on Evidence, §§ 59, 890, 891, 925; Kelly v. People, 229 Ill. 81, 83, et seq., 86, 82 N. E. 198, 12 L. R. A. (Ñ. S.) 1169, 11 Ann. Cas. 226; Ben v. State, 37 Ala. 103; Pound v. State of Ga., 43 Ga. 88; Thomas v. People, 67 N. Y. 223, 224; People v. Carlton, 57 Cal. 85, 40 Am. Rep. 112; State v. Eddon, 8 Wash. 292, 36 Pac. 139; People v. Powell, 87 Cal. 362, 25 Pac. 481, 11 L. R. A. 75; State v. Chaffin, 56 S. C. 434, 33 S. E. 454. See, too, People v. Webster, 139 N. Y. 81, 82, 34 N. E. 730. This principle is not departed from in People v. Gallagher, 75 App. Div. 39, 78 N. Y. Supp. 5, affirmed 174 N. Y. 505, 66 N. E. 1113, but is recognized. For the court in that case, although saying that the defense had not offered evidence of the general reputation of the deceased, did say that by various kinds of evidence the defense had sought to show that the deceased was of "a quarrelsome, morose, irritable, vindictive disposition, and subject to violent outbursts of temper, and the making of threats against the defendant." Thus the defendant by evidence had raised the issue that justified the rebuttal. 3. I think that Burke v. People, 4 Hun, 481, is authority. Burke was on trial for mayhem committed upon McLaughlin in a grogshop. The complainant, from some fancied danger from the defendant, had tried to borrow a pistol and an ice pick. The district attorney asked the bartender of the grogshop: “Do you remember what McLaughlin said about Burke's coming into the store? A. Yes, sir; he told me, when I wanted him to go and sit down and go to sleep, that he was afraid Burke would come in and beat him." The court (Davis, P. J., and Daniels and Brady, JJ.), said, per Brady, J.: 182 N.Y.S.-50 * "Upon the exceptions thus stated the appeal in this matter depends. In reference to the first, it may be said that the statement of the complainant before the occurrence, when the prisoner was not present, was not admissible. It is not necessary to cite authorities for a rule so well established by the law of evidence. The statement was injurious to the defense of the prisoner, because he claimed to have acted in self-protection; and the effect of it was to make the prisoner the aggressor, and to put the complainant in fear of bodily harm, thus justifying his resort to the poker, when he could get neither pistol nor ice pick, when, on his own testimony, there was nothing from which he was authorized to draw the conclusion that the prisoner meant to assail him in such way as to put him in any jeopardy." [5-7] 4. Such declarations could not be regarded as evidence as to the character of the defendant. Weyrich v. People, 89 Ill. 97. By taking the witness stand the defendant subjected herself to attack upon her credibility, but did not put her general character in issue, nor had she done so by testifying to the act of violence incidental to the fatality. Authorities supra. Therefore even evidence against the character of defendant was not admissible on the part of the prosecution. See People v. Lingley, 207 N. Y. 406, 101 N. E. 170, 46 L. R. A. (N. S.) 342, Ann. Cas. 1913D, 403; People v. Richardson, 222 N. Y. 103107, 118 N. E. 514. The danger of recognition of such naked self-serving declarations is obvious. Fabrication of "evidence" of this kind presents little difficulty. I cannot think that the admission of this testimony was negligible. The instance is not isolated, for two other witnesses, Messinger and King, were allowed to give like testimony. There were no eyewitnesses to the homicide. The defendant had testified to an attempted act of violence little less than murder. She was entitled to be tried upon the evidence, and yet the jury were in effect informed that there was evidence that the state of the deceased was fear of his life at her hands, as a desperate woman who would stop at nothing. It seems to me that the error was capital (People v. Richardson, supra, 222 N. Y. 107, 118 N. E. 514), and that we should reverse the judgment and grant a new trial. All concur. DELK REALTY CORPORATION v. RUBIN et al. (Supreme Court, Appellate Term, First Department, June 3, 1920.) 1. Frauds, statute of 102-Agent's authority to sign contract or lease for more than one year need not be in writing. Under Real Property Law, § 259, requiring contract for sale or for the leasing of real property for a longer period than one year to be in writing, signed by lessor or grantor, or lawfully authorized agent, the agent's authority need not be in writing, but may be conferred in accordance with the general law of agency. 2. Frauds, statute of 102-Letter from landlord's agent held a sufficient written memorandum of lease. Though landlord failed to sign lease for two-year term, as required by Real Property Law, § 242, a letter written by landlord's agent, authorized to make leases, to the landlord's attorneys stating that such lease For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |