FIFTH DEPARTMENT, OCTOBER TERM, 1886. There is great justice and fairness in this rule, otherwise injustice might be done to individuals if their remedy for wrongs authorized by corporations were to be confined to actions against the agents employed by the corporation. Since in these times a vast portion of the business of the country is carried on by corporations, guided and stimulated in their action by the advice and under the direction of shareholders, who desire to make their investment profitable, this rule should not be narrowed or limited in any degree by the decisions of the court. If the views already expressed are sound, then it becomes wholly unnecessary to consider the proposition much discussed upon the argument, by the learned counsel for the defendant, that a corporation cannot become a party to a conspiracy. Although it is difficult to see why it may not, and authority may be cited holding that it can join a conspiracy and become liable for the action of all the conspirators. (Dodge v. Bradstreet Co., 59 How., 104; Morton v. Metropolitan Life Ins. Co., 34 Hun, 367.) The plaintiff in stating his cause of action against a corporation may, and should state the acts complained of as being the acts of the corporation itself, and it is not necessary nor proper to aver in the complaint that they were done by and through the authorized agent of the corporation. It is a matter of proof upon the trial to establish that the person who did the act was the authorized agent of the defendant, for it can only act through its officers and agents. When a charge is made in a pleading against a corporation by its corporate name, the legal inference is that some person or persons in its employ did the act imputed. (1 Chitty on Plead., 286; 2 Wait's Pr., 376; Stoddard v. Onondaga Conference, 12 Barb., 575.) Judgment affirmed, with costs, and with leave to the defendant to withdraw the demurrer and answer on payment of the costs of the demurrer and of this appeal, within twenty days. SMITH, P. J., and BRADLEY, J., concurred; HAIGHT, J., not sitting. Judgment in each case affirrued, with costs, with leave to the defendant to withdraw demurrer and answer the complaint in twenty days, on payment of the costs of the demurrer and of this appeal. MEMORANDA OF CASES NOT REPORTED IN FULL. FREDERICK J. BLAESI AND OTHERS, APPELLANTS, v. CAROLINE BLAESI, WIDOW OF JACOB F. BLAESI, RESPONDENT. Evidence as to personal transactions with a deceased person to what cases the prohibition does not extend — Code of Civil Procedure, sec. 829. APPEAL from a judgment of the Monroe Special Term, dismissing the complaint. The action was brought to establish a deed of conveyance alleged to have been made by the defendant to Jacob F. Blaesi, who subsequent to such conveyance became her husband; who, having title, conveyed the premises to one Jacob Stubenbord, on May 18, 1874, and on May 17, 1877, he married the defendant. In June, 1877, Stubenbord conveyed the premises to her. Jacob F. Blaesi, the husband, died intestate in December, 1883. The plaintiffs are his heirs-at-law, and they allege that the defendant, the widow of Jacob F. Blaesi, made and delivered to him, in 1882, a deed of conveyance of the land in question. They demand judgment that the deed may be produced, and that they be adjudged the owners of the premises, as such heirs, subject to her right of dower. The allegations as to the conveyance are put in issue by the defendant's answer. The trial court found that the defendant took title from Stubenbord, and has since continued to be, and is the owner, and in the possession of the premises, and directed judgment dismissing the complaint on the merits. The court at General Term, after holding that this finding was supported by the evidence, said: "The difficulty arises upon exceptions taken to the exclusion of evidence on the trial. One of the plaintiffs testified that a conversation took place between the defendant, her husband and himself, and his evidence of such con FIFTH DEPARTMENT, OCTOBER TERM, 1886. versation was excluded as incompetent, under Code of Civil Procedure, section 829. The witness was a party, and interested in the event, and was examined in his own behalf and interest and that of his co-plaintiffs, but not against the executor, administrator or survivor of a deceased person, or a person deriving title from, through or under a deceased person. The defendant took her title from a person other than her husband, and although her grantor took his title from him, that fact does not presumptively place her within the relation to the deceased required to give application to the inhibition of the statute referred to. Her grantor would be excluded as against her from testifying to personal communications had by him with the deceased. This contest is between the defendant and the heirs of the decedent. They claim under him, and as against them the defendant would not be permitted to relate personal transactions or communications had by her with him in his life time, but their transactions with him, as against her, do not seem to come within the letter or spirit of the provisions of such section. The exception to the exclusion of the evidence seems to have been well taken. And we think the striking out the statement of the witness, that he saw the deed in the possession of the husband, was error, not only for the reason before given, but because it did not, as it stood, tend or purport to prove any personal transaction between him and the witness. "There seems to have been no error upon the trial or in the decision, other than in the rulings excluding and striking out the evidence referred to, and for those reasons the judgment should be reversed and a new trial granted, costs to abide event." Barhite & Reed, for the appellants. William E. Werner, for the respondent. Opinion by BRADLEY, J.; SMITH, P. J., and BARKER, J., concurred; HAIGHT, J., not sitting. Judgment reversed and new trial ordered, costs to abide event. FIFTH DEPARTMENT, OCTOBER TERM, 1886. 42 161 EUGENE E. LEWIS, AS EXECUTOR, ETC., OF CHARLOTTE 91 J. LEWIS, DECEASED, RESPONDENT, v. ENOS MERRITT, APPELLANT. Action for the conversion of personal property—the burden of proving a gift rests upon the party claiming it when a charge that the defendant must establish the gift beyond a suspicion will be sustained. APPEAL from a judgment in favor of the plaintiff entered on a verdict rendered at the Yates Circuit. This action was brought to recover damages because of the alleged conversion of certain promissory notes, executed by the defendant to the plaintiff's testatrix, who was the sister of the defendant and the mother of the plaintiff. The defendant, by his answer, admitted the execution and delivery of the notes to the deceased; alleged that before and at the time of her death he was rightfully and lawfully in the possession of the notes, and they were then 'his property, and denied that they were the property of the deceased at the time of her death. The action has been tried three times, each trial resulting in a verdict for the plaintiff. The first verdict was set aside and a new trial granted on the ground of newly discovered evidence. The judgment on the second verdict was reversed by the Court of Appeals, for the improper exclusion of evidence. (98 N. Y., 206.) The court at General Term said: "The notice of the present appeal purports to be from an order denying a motion for new trial, as well as from the judgment, but no such order appears in the case. The only questions to be considered, therefore, are those presented by exceptions. "The appellant's counsel contends that there is no evidence of a wrongful taking. The statement of the evidence on that point, contained in the opinion of RUGER, Ch. J., on the review of the second trial (98 N. Y., 207, 208), may be adopted as an accurate summary of the evidence given on the last trial, and is substantially as follows: "The plaintiff, as a witness in his own behalf, testified, in substance, that the notes in suit were, for some time previous to his mother's death, kept in a tin trunk under the bed in the room HUN-VOL. XLII 21 FIFTH DEPARTMENT, OCTOBER TERM, 1886. occupied by her, and that he saw them there on the morning before she died, and that upon examining the trunk on the following morning he found that the notes had been abstracted. Another witness testified that the notes were afterwards found in the possession of the defendant, who, when they were demanded of him, refused to surrender them. The plaintiff also testified to facts showing the presence of the defendant in the room where the notes were kept during the last hours of his mother's illness, and the opportunity thereby afforded him to obtain unauthorized possession of them. The learned chief judge, speaking for the majority of the court, said that the evidence thus tended both to establish ownership of the notes by the testatrix, by creating a presumption, arising from the fact of possession, and by inference to controvert the probability that the defendant came rightfully into possession of the notes by means of a prior disposition of them by her. As the testimony upon the point is substantially the same now as it was then, the decision of the court of last resort is conclusive upon the question. * * "The trial judge charged the jury that the defendant, in order to hold this property by virtue of a gift, must establish it beyond a suspicion. To that instruction the defendant excepted. The charge accords with the rule stated by PECKHAM, J., delivering the opinion of the court, in Grey v. Grey (47 N. Y., 552). That was an action on a promissory note given by a son to his father, on settlement of accounts, payable one year from date, with interest. The father died about four months after the note was given. The suit was brought by his personal representatives. On the trial the defendant produced the note with his name torn off. He testified that he had it in his possession prior to his father's death; that he never took the note from the drawer of his father, and he did not know of any third person owning or possessing the note; that he never paid it, or transferred or delivered to intestate any property, nor was the intestate indebted to the defendant since giving the note. It appeared that the defendant had means of access to his father's papers. In that case, as in this, it did not appear affirmatively how the defendant became possessed of the note. Judge PECKHAM said: 'If any presumption of title or of payment prevail, by mere possession, it is only where the possession is free from sus |