v. Shulenberg, 165 N. Y. 388, 59 N. E. 135, 80 Am. St. Rep. 730; Eisenlord v. Clum, 126 N. Y. 563, 27 N. E. 1024, 12 L. R. A. 836; Fulkerson v. Holmes, 117 U. S. 397, 6 Sup. Ct. 780, 29 L. Ed. 915. Cases of pedigree are pèculiar, in that they depend almost exclusively upon presumption, which is a process of probable reasoning from facts. established or judicially noticed; and the weight to be given this character of evidence depends upon the facts surrounding each particular case. Identity of name raises a presumption of identity of person, where there is similarity of residence, or trade, or circumstances, or where the name is an unusual one. Lawson on Presumptive Evidence, Rule 57, p. 306. Identity of name is prima facie evidence of identity of person. Young v. Shulenberg, supra; Stebbins v. Duncan, 108 U. S. 32, 47, 2 Sup. Ct. 313, 27 L. Ed. 641; People v. Snyder, 41 N. Y. 397, 403; Hatcher v. Rocheleau, 18 N. Y. 86; Mahaney v. Mutual Reserve Ass'n, 69 Hun, 12, 16, 23 N. Y. Supp. 213; Trebilcox v. McAlpine, 46 Hun, 469, 473; Spotten v. Keeler, 22 Abb. N. C. 105. In a case of identity of name the presumption arises from the improbability that different persons have the same name, and therefore the onus is cast upon the party denying the identity to show that the name relates to a different person. People v. Smith, 45 N. Y. 772, 779. Mere misspelling of a name, where there is not such difference as to make it a distinct name, does not affect the identity of the person. Jackson v. Boneham, 15 Johns. 226, Jackson v. Cody, 9 Cow. 140, 147. From the nature of the case, a question of pedigree forms an exception to the general rule as to the proof of a particular fact by hearsay, reputation, or tradition; and, in addition to the declarations of deceased persons who were likely to know, unauthenticated facts and entries, made presumably with no motive to deceive-such as an entry in a family Bible, an inscription. on a tombstone, a pedigree hung up in a family mansion, and recitals in deeds-are competent evidence upon that issue. Jackson v. Cooley, 8 Johns. 128, 131; Young v. Shulenberg, supra. Notwithstanding the fact that proof of handwriting was not made, and that there was no evidence that the entries were in the handwriting of one who was then clerk of the Collegiate Reformed Church of the city of New York, or that there was a rule of the church requiring such records to be kept, we think the records of marriages and baptisms and deaths kept by that church were competent evidence, and should have been received upon the trial. These same records were received in evidence and held proper in Jackson v. King, 5 Cow. 237, 15 Am. Dec. 468, and were there considered of such a public nature that an exemplified copy might be used. In Jacobi v. Order of Germania, 73 Hun, 602, 26 N. Y. Supp. 318, and in Hartshorn v. Metropolitan Life Ins. Co., 55 App. Div. 471, 67 N. Y. Supp. 13, records of baptism kept by the pastor of a church were held competent for the purpose of showing, not when the person was born, but when he was baptized, which must have been after his birth. These authorities are said not to be applicable to the present question, because it was there shown that the records were kept by the pastors of the churches, and in the present case the record was kept only by the clerk. Nevertheless, they are records of the church, and in its custody, preserved by it, and presumably made by some one in authority. The and 132 New York State Reporter church, as a corporation, had several congregations, in charge of different pastors. Each pastor might have kept a record of such marriage ceremonies as he performed, and such baptismal services as he held. If this had been done, doubtless no question would have been made as to the competency of the record. We are of the opinion that that competency with respect to pedigree was not destroyed by the fact that one general record was kept by the clerk of the church corporation of the acts of this character of the several pastors of the various congregations. There is no reason to doubt the truthfulness of the records, or to assume that they were made from any improper motive. Besides, they were ancient documents, and had been in existence for a century. They came from the custody which must be deemed proper, and that proved themselves. The general rule is that an ancient record or document, if it comes from a custody which the court deems proper, and is itself free from any indication of fraud or invalidity, proves itself. Matter of Webster, 106 App. Div. 360, 94 N. Y. Supp. 1050. Had the records been received in evidence, they would have tended to show that Anna E. St. John was a member of the family of plaintiff's grandmother and great grandmother, who were dead, and their declarations as to the relationship of Anna and her mother to the plaintiff's grandmother would have been proper, as well as their declarations as to the decease of other members of the family without issue. If the view that these records should have been received in evidence is correct, inasmuch as a new trial must be had, it is unnecessary to pass upon the question whether or not the plaintiff produced other evidence sufficient to render these declarations competent, for the records can then be introduced, and they will themselves furnish prima facie proof of common ancestry sufficient to make those declarations admissible. Little significance, it seems to us, should be attached to the fact that Catherine Bokee's name is spelled in different ways. Daniel Hyer or Heyer is the father mentioned throughout the record, and Catherine is the mother named. That a mistake was made with respect to her maiden name of course raises a question of fact as to whether or not she is the same person, but not so serious a one as to prevent the introduction of the record in evidence. Our conclusion is that the judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur. (111 App. Div. 616) DWIGHT v. LAWRENCE. (Supreme Court, Appellate Division, First Department. March 9, 1906.) 1. APPEAL-QUESTIONS REVIEWABLE. Whether or not the interests of certain parties to a partition suit are properly defined by the decree is immaterial on an appeal in which they do not appear as appellants, and in which the interest of appellant is in no way affected by the interests of such other parties. [Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 3581-3590.] 2. PARTITION-JUDGMENT-PARTIES CONCLUDED. Under Code Civ. Proc. § 1557, providing that a judgment in partition is conclusive upon each person claiming through a party to the suit, and section 1577, providing that, if a partition sale is confirmed, the judgment is binding upon the same persons by whom a final judgment of partition ⚫ is made binding by section 1557, a judgment in partition, in which all of the parties who at that time had any interest in the property were before the court was sufficient to give the purchaser at the sale a good title, although there might thereafter be unborn children who might have an interest in a part of the estate held as executor and trustee by a party to the suit. [Ed. Note. For cases in point, see vol. 38, Cent. Dig. Partition, §§ 51, 393.] Appeal from Special Term, New York County. Action by Julia L. Dwight against Edgar V. Lawrence and others. From a judgment for plaintiff, the defendant named and others appeal. Affirmed. See 90 N. Y. Supp. 970. Argued before O'BRIEN, P. J., and INGRAHAM, McLAUGHLIN, LAUGHLIN, and HOUGHTON, JJ. Charles L. Hoffman, for appellant. De Lagnel Berier, for respondent. W. H. Van Steenbergh, guardian ad litem of infant defendant, Katherine R. Neumann. PER CURIAM. The judgment appealed from must be affirmed. It properly directs a sale of the property affected. It is perfectly obvious, under the proofs presented, that an actual partition could not be made so as to do justice to all of the parties interested. Under the judgment appealed from, the plaintiff is entitled to an undivided onefourth interest, the appellant individually, and as sole heir at law of Samuel R. Lawrence, who has died since the appeal was taken, is entitled to an undivided one-half interest, and the remaining one-fourth interest is held by Gaines Lawson as executor and trustee under the last will and testament of Laura Lawson, deceased, in trust to pay the income therefrom, one half to the defendant Katherine L. Neumann during her life, and the other half to Lawrence M. Lawson during his life. The defendants Katherine L. Neumann, Lawrence M. Lawson, and the infant defendant, Katherine R. Neumann, have an interest, either vested or contingent, in this remainder; but it is immaterial whether or not such interest be correctly stated in the judgment, inasmuch as none of them have appealed therefrom, and this part of the judgment in no way affects or concerns the appellant. It is sufficient to say that a purchaser upon the sale will obtain good title, inasmuch as there are now before the court all of the parties who at the present time have any interest in the subject-matter of the sale. Sections 1557, 1577, Code Civ. Proc. The fact that there may hereafter be unborn children who might have an interest in the one-fourth interest, or some part thereof now held by Gaines Lawson as executor and trustee, could not affect the title, because "the persons first entitled to which, or virtual representatives whereof," are parties to the action. Subdivision 3, § 1557, Code Civ. Proc. The only appellant is Edgar V. Lawrence. and 132 New York State Reporter The plaintiff, after deducting the costs and expenses of the sale, will be entitled to one-fourth of the proceeds, the appellant to one-half, and the defendant Gaines Lawson, as executor and trustee under the last will and testament of Laura Lawson, to the remaining one-fourth; the same to be held by him in trust, and to be disposed of in accordance with the terms of such will. The judgment appealed from, therefore, is affirmed, with costs to the respondent. (111 App. Div. 553) CORN EXCH. BANK v. PEABODY et al. (Supreme Court, Appellate Division, First Department. March 9, 1906.) 1. TROVER AND CONVERSION-MEASURE OF DAMAGES. In the absence of special circumstances in an action for conversion of personal property, the value of the property at the time of the conversion, with interest, is the measure of damages. [Ed. Note. For cases in point, see vol. 47, Cent. Dig. Trover and Conversion, §§ 254, 263, 264.] · 2. COURTS RULES OF DECISION-PREVIOUS DECISIONS-DICTA. A decision has no binding force as a precedent, excepting so far as it determines the questions then before the court. [Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, §§ 311340.] 3. APPEAL-HARMLESS ERROR-INSTRUCTIONS. Error in instructing that the measure of damages for conversion is the highest value of the article converted from the time of the conversion to the time of trial is not rendered harmless by the fact that the only evidence of value given by the plaintiff was the value at the time of the conversion, and that the jury gave a verdict for a larger amount than the value shown by defendant's evidence to be the value at a later date. Appeal from Trial Term, New York County. Action by the Corn Exchange Bank against Henry W. Peabody and others. From a judgment in favor of plaintiff, and from an order denying a new trial, defendants appeal. Reversed. Argued before O'BRIEN, P. J., and MCLAUGHLIN, PATTERSON, LAUGHLIN, and HOUGHTON, JJ. W. P. Prentice, for appellants. MCLAUGHLIN, J. This action was brought to recover the value of certain goatskins alleged to have been wrongfully converted by the defendants. These skins, consisting of two lots, one designated M. H. S. C. V. and the other D. R., were stored by plaintiff's assignor at different times with one Weber in warehouses kept by him. The defendants had also stored similar skins in the same warehouses. The warehouseman made a general assignment for the benefit of creditors, and thereupon. the defendants, being unable to obtain possession of their skins from the assignees, brought an action for that purpose. A writ of replevin was issued, under which the defendants, acting through the sheriff, took possession of a large number of skins, including those alleged to belong to the plaintiff, which were subsequently sold. The plaintiff al leged in its complaint that the value of the skins taken was $18,128.83, for which judgment was demanded, besides interest. The defendants denied not only the conversion, but also that the skins were of the value alleged. At the trial much evidence was given by both parties bearing upon the question of the conversion and the identity of the skins, as well as their value; the plaintiff's proof tending to show that the value of the M. H. S. C. V. skins was $8,290.06, and the value of the D. R. skins $7,175, making in all $15,465.06, while the defendants' proof tended to show that the skins were of much less value, especially the D. R. skins. The jury evidently accepted the testimony offered on the part of the plaintiff as correctly stating the value of the skins by rendering a verdict in its favor for $19,206.06, which was the value of the skins as stated by plaintiff's witnesses, together with interest from the time the conversion took place to the time of the trial. Judgment was entered upon the verdict, and defendants appeal. Numerous errors are alleged as calling for a reversal of the judgment, both as to the admission and rejection of evidence, and especially as to the sufficiency of the proof to establish that all of the skins for which an award has been made belonged to the plaintiff. These questions, or some of them, would require very serious consideration, but, inasmuch as we are all agreed there must be a new trial on account of an error in the charge, and they may not again be presented, it is unnecessary to pass upon them. The value of the skins taken was one of the questions seriously contested at the trial, and, while there was no great difference between the parties as to the value of the M. H. S. C. V. skins, there was a very material difference as to the value of the D. R. skins; the plaintiff's testimony tending to show that they were worth in February, when the conversion took place, at least 35 cents per pound, while the testimony on the part of the defendants tended to show that they were worth at most from 10 to 17 cents per pound. All of the skins were sold by the defendants, and there does not seem to be any serious question raised but what they obtained the best possible price at such sales, the M. H. S. C. V. skins bringing $7,680.94, and the D. R. $1,929.90, making in all $9,610.84; yet the jury found that the value of the skins was several thousand dollars more than the amount realized by the defendants. Bearing upon the question of the value of the skins, the learned trial justice, in submitting the case to the jury, said: "The plaintiff is entitled to recover the highest value of the article converted, if you find there was a conversion in this case, from the time of the conversion to the time of the trial, and he is also entitled to recover as damages interest upon such value." An exception was duly taken to this portion of the charge, and the plaintiff's counsel, evidently realizing that it was not the proper rule. immediately said: "I am perfectly willing that should be corrected," to which the court responded: "I refuse to correct it, and refer you both to Flagler v. Hearst, 91 App. Div. 12, 86 N. Y. Supp. 308. I reiterate that charge. It is the rule of damages in conversion cases." The learned court was in error. It is not the proper rule of damages in actions of conversion. As I understand it, the general rule is this: In |