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Boyd v. Boyd, et al.

designed and put in execution by the same person, are admissible to prove that an act which has been done by some one was in fact done by the person who designed and pursued the plan, if the act in question is a necessary part of the plan" (Fowle v. Child, 164 Mass., 213; Insurance Co. v. Armstrong, 117 U. S., 591; Jordan v. Osgood, 109 Mass, 457).

2. Robert Boyd was sworn as a witness in his own behalf, and was asked who furnished the money to the deceased which was paid to redeem from the sheriff's sale. The witness was permitted, against the plaintiff's objection and exception to the competency of the inquiry, to answer that he furnished the money himself, though he was the defendant in the judgment under which the redemption was made. The witness was also permitted to testify that he never signed the name of the deceased to the disputed paper, although the question was objected to by plaintiff's counsel as within the inhibition of section. 829 of the Code, which objection was overruled by the court and the plaintiff's counsel excepted. He was also asked if he had not paid the judgment under which the deceased redeemed before his death, and, against the plaintiff's objection that the question was incompetent, he was permitted to answer that he had. When it appeared from the cross-examination of the witness that these transactions were with the deceased, the plain

tiff's counsel moved to strike out the answer as within the prohibition of section 829 of the Code. The motion was denied and the plaintiff's counsel excepted. This ruling was error. The witness was the principal defendant in the action, deriving his claim of title from the deceased under the disputed assignment of the certificate of redemption. He was permitted to testify to what was clearly a personal transaction with the deceased against the plaintiff, who was his personal representative and heir at law (Grey v. Grey, 47 N. Y., 552). Inasmuch

Boyd v. Boyd, et al.

as this testimony tended to show that the deceased was never the beneficial holder of the certificate, and that the witness at all times was, the deceased being simply a trustee for his benefit, the answers were quite material.

The statute excludes all testimony on the part of a surviving or interested party "concerning a personal transaction" with the deceased. This prohibition cannot be evaded by any indirection, as by offering testimony of some negative fact. When it appears that there was a personal transaction and that the testimony offered tends to show either what did take place between the parties or what did not, it must be excluded by force of the statute so long as it concerns the transaction or justifies an inference as to what it really was. The statute may be as effectually violated by testimony of a negative character as by affirmative proof of what actually took place. The testimony of Robert that he never signed the name of the deceased to the paper in controversy illustrates the manner in which a prohibitive statute may be evaded by the ingenuity of counsel. Of course, if the plaintiff's theory of the case be the true one, then there never was any personal transaction with the deceased, since it is aileged that the deceased never executed or delivered the paper and that it is a spurious instrument. But on the other hand the defendants insist that it is the genuine act of the deceased and that he signed and delivered it at the date specified. Hence, upon the defendants' theory there was a personal transaction, which consisted in the execution and delivery to the wife of the witness, under whom he claimed title, of a written assignment of the certificate of redemption. The witness gave testimony to prove that transaction. If it did not prove or tend to prove it, then it was not admissible at all. But when he swore that he never signed the paper his testimony tended to prove that the deceased did, since there was no claim. that any one else had anything to with the transaction.

Boyd v. Boyd, et al.

His testimony, under the circumstances, had nearly the same probative value as if he had sworn, as the other witnesses did, that he was actually present at the time and saw the deceased affix his signature to the instrument. The testimony, therefore, was concerning a personal transaction with the deceased, since it was an attempt to prove it by negative instead of affirmative testimony. If the witness was not competent to prove what took place at that transaction by direct or affirmative testimony, he was not competent to prove it by indirect or negative testimony (Clift v..Moses, supra; Walsh v. McArdle, 78 Hun, 411). His wife swore, and it was admitted, that he was present when the paper was signed by the deceased as a genuine instrument. Hence, if it be true that such a transaction ever took place, the witness participated in it and could not testify concerning it, either affirmatively or negatively.

The defendant Elise Boyd, wife of the defendant Robert Boyd, was sworn generally as a witness for the defendants, and the defendant Carberry was a witness in his own behalf. Both testified that they were present and saw the deceased sign the disputed paper. The question which elicited these answers was, in each case, objected to as within the inhibition of section 829 of the Code; but the objection was overruled and the plaintiff's counsel excepted. This testimony should have been excluded. They were not only defendants in the action, but parties under or through whom the defendant Robert Boyd claimed title, and they testified against the plaintiff, the administrator, to what was clearly a personal transaction with the deceased. Elise was the person to whom the disputed assignment was made, and she is named as the assignee in the paper. Carberry was the subscribing witness, and both were present when they claimed the deceased executed the instrument. They testified to a transaction which the deceased, had he been alive, could

Boyd v. Boyd, et al.

have denied or qualified. It was, therefore, a personal transaction, within the meaning of the Code (Holcomb v. Holcomb, 95 N. Y., 316; Clift v. Moses, 112 N. Y., 426; In re Eysman, 113 N. Y., 62; Adams v. Morrison, 113 N. Y. 152; In re Dunham, 121 N. Y., 575; Devlin v. Bank, 125 N. Y., 756; Petrie v. Petrie, 126 N. Y., 623; In re Bernsee, 141 N. Y., 392; Martin v. Hillen, 142 N. Y., 140; In re Callister, 153 N. Y., 294). The testimony was clearly forbidden by the statute, and after it was admitted there was no distinct ruling that cured the error within the principle sanctioned by this court (Blashfield v. Empire State Telephone & T. Co., 147 N. Y., 520).

The testimony of the three defendants did not come within the exception recognized in Pinney v. Orth (88 N. Y., 447), and the cases which follow it. The rule laid down in that case precludes the surviving party to a personal transaction with a deceased person from testifying to what passed between them personally, or did not pass, as against the personal representative of the deceased, but does not preclude the survivor from testify. ing to extraneous facts or circumstances which tend to show that a witness who has testified affirmatively to such a transaction has testified falsely, or that it is impossible that his statement can be true, as, for instance, that the survivor was at the time of the alleged transaction absent from the country and, therefore, that the interview could not have occurred. In this case, the three surviving parties to the transaction were allowed to testify to what did or did not take place, and if their testimony was accepted it was nearly conclusive upon the court on the issue whether the paper was genuine or spurious. I have not overlooked the circumstance that at a subsequent stage of the trial the learned trial judge stated that, of his own motion, he had stricken out all the testimony of these two witnesses with respect

Boyd v. Boyd, et al.

to the actual execution of the paper, although the testimony of Robert, which has been referred to, was not included in the statement. But as soon as that statement was made the defendants' counsel recalled both of them and proceeded to prove under like objection and exception that the signature to the paper was the genuine signature of the deceased from their knowledge of the handwriting. After having sworn that they were present and saw the deceased sign the paper the inquiry as to their opinions based upon knowledge of handwriting would seem to be quite perfunctory. When a witness has testified to a fact from personal knowledge and observation it must be expected that he will testify to the same fact as a matter of opinion. The witnesses were so committed that it was impossible for them to express but one opinion on the subject, if, indeed, it could be called an opinion at all, in any legal sense. The process of separating what a witness swears to from personal knowledge and observation, from what he subsequently asserts in the same direction as matter of opinion, is too subtle and unsafe to impose upon either the jury or the court in determining the weight and value of evidence. It is very clear that the learned judge gave considerable weight to the testimony of these two witnesses, and it is quite impossible to say that he rejected what they stated as matter of personal knowledge and adopted what they asserted as mere matter of opinion, or that the witnesses themselves observed any such refined distinction.

3. It will be remembered that the defendant Robert Boyd was permitted to testify that he furnished the money to the deceased to make the redemption, and subsequently paid the judgment upon which he redeemed. This testimony tended to show that the deceased held the title and the certificate as trustee for Robert. If true, it furnished a reasonable basis for the inference that the assignment was genuine, since it was the duty

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