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Boyd v. Boyd, et al.

of the deceased to transfer the property to the real beneficiary. The plaintiff had the right to contradict the testimony of Robert in that regard, since the court evidently regarded it, as in fact it was, very material. The plaintiff's counsel produced the written examination of Robert taken in proceedings supplementary to execution, filed in September, 1883, and offered to show by it that he then declared that none of the property sold on execution was held in trust for him, that he did not know the deceased. The testimony offered was excluded and plaintiff's counsel excepted. We think it was admissible, since it contained the admissions or declarations of the witness tending to contradict or impeach his testimony at the trial, to the effect that he furnished the money for which the certificate was issued and paid the judgment. In other words, if his testimony in that regard was true, there was a secret trust for his benefit, represented by the certificate in the hands of the deceased.

There are some other exceptions in the case that might be difficult to answer, but since they may be obviated upon another trial it is unnecessary to consider them. It may be quite true, as intimated by the court below, that the charge stated in the complaint is unjust to the defendants and has its origin in improper motives; but if that be so we cannot believe that the rights of the parties will suffer from a full investigation conducted according to the established rules of evidence for the ascertainment of truth.

The judgment of the Appellate Division and of the Special Term should be reversed and a new trial granted; costs to the plaintiff to abide the event.

HAIGHT, MARLIN and LANDON, JJ., concur upon the third ground stated in the opinion; WERNER, J., concurs in the result; GRAY, J., dissents; PARKER, Ch. J., not sitting.

Judgment reversed, &c.

Boyd v. Boyd, et al.

Note on Section 829.-Construction:-For a construction of this section 829, Code Civil Procedure, in these reports, see the following cases.

Fraud.-Where the defendant vendors set up fraud and conspiracy, and that the plaintiff's title was devoid through such fraud and conspiracy, and called one of the conspirators to impeach the title and that the property was transferred by him, an alleged coconspirator, the plaintiff's assignor and the plaintiff having been previously examined in her own behalf, Held, that any party to the transaction was competent as a witness in behalf of the vendors to testify to the facts on which the claim of fraud was founded. Sacia v. Deckers. See also 1 Civ. Pro. Rep. 147. Miller v. Davis, 20 Civ. Pro. Rep. 414.

Evidence-The rule at common law does not pertain.-Section 829 of the Code of Civil Procedure which prohibits the examination of a party as a witness in his own behalf against the executor, &c., of a deceased person concerning personal transactions between the witness and the deceased person, does not confine the survivor to such evidence concerning the transaction as was admissible at common law. Pirmey v. Orth, 2 Civ. Pro. R. 1. See also note to this case see also Buvrus v. Mullin, 29 Civ. Pro. R. 344.

Attorney.-A lien for services does not make him an interested party within the prohibition of the section. Sherman v. Scott, 2 Civ. Pro. R. 366.

Promissory note.-Where the obligation is several as well as joint, the prohibition of the statute does not apply. Sprague v. Swift, 3 Civ. Pro. R. 34.

Surviving Partner.-A general question concerning transactions with the firm which will permit plaintiff to testify to transactions with the deceased partner should not be allowed when special objection is made. Bristol v. Sears, 3 Civ. Pro. R. 328. See also note at the end of this case.

Executor.-Where both partners were examined before trial, and one died and his executor was substituted for him, the other deposition may be read at the trial although it relates to personal transactions with the deceased. Where in such a case the stipulation also provided that either or both the depositions might be read upon the trial, that substantial justice required that the stipulation be enforced. MacDonal v. Woodburg, 3 Civ. Pro. R. 337.

Statute-Must be strictly construed. It is not enough to be brought within its spirit. Est. Le Baron, 6 Civ. Pro. R. 62.

Husband-Mortgage.-Where in an action against an administratrix to have a mortgage given to her decedent declared null and void for want of consideration the plaintiff's husband, who was not a party, was offered as a witness, and it appeared that he originally

Boyd v. Boyd, et al.

owned the mortgaged premises and conveyed them to one who executed the mortgage in question, and that after deeded said premises to the plaintiff, Held, that having no interest in the action he was not an incompetent witness; also Held, where it was alleged in the answer but not proven on the trial that the consideration for the mortgage was a debt due the deceased from the grantee that a bare averment of interest in the answer was not sufficient to establish the fact so as to reject the witness alleged to be interested. Wilson v. Munoz, 6 Civ. Pro. 71.

Title.-Testimony as to personal transactions between a party and a deceased person through whom both parties claim title is inadmissible. Taylor v. Mellvrum, 6 Civ. Pro. R. 235. Concey v. Wadhams, 9 Civ. Pro. R. 204.

Receipt.-A receipt put in evidence by the defendant to have payment in testimony relating to a personal transaction of the plaintiff with the deceased is inadmissible. Boughton v. Bogardus, 7 Civ. Pro. R. 252.

Counter-claim.-Where in an action against an executor, a demand for services rendered, the plaintiff of the defendant's testator was set up as a counter-claim and the plaintiff testified to a conversation between him and the executor in which he had stated that the account had been paid, Held, that it was competent for him to speak of the details of the conversation but that the following question asked by his counsel "Was it true that it all had been paid?" was properly objected to upon the ground that it called for a transaction or conversation with the deceased. Williams v. Davis, 7 Civ. Pro. R. 282. Lerche v. Brasher, 8 Civ. Pro. R. 115. But see same case in Court of Appeals 11 Civ. Pro. R. 423.

Contradiction of a living Witness.-It is not the intention of the Code to prevent a party from testifying to any extrinsic fact that tends to contradict a witness who swears to transactions or conversations had between such party and a deceased person even where he cannot clearly testify that no secret conversation or transaction was ever had. It was not the intention to prevent the contradiction of a living witness, but to prevent a living party to a transaction or communication from testifying to it himself where death has closed the mouth of the other party. McKenna v. Balgen, 8 Civ. Pro. R. 127.

Corporation.-Plaintiff may testify to personal transaction with the president of the defendant, notwithstanding the death of such president, it not appearing that the president was pecuniarily interested in the action. Hurt v. Providence & S. S. Co., 9. Civ. Pro. R. 291.

Interrogatories.-Upon the settlement of interrogatories where it is not absolutely certain that such evidence may become competent,

Boyd v. Boyd, et al.

they may be allowed under this section, reserving the protection at the trial to strike them out. Wilcox v. Dodge, 17 Civ. Pro. R. 248.

Personal Communications with Decedent-Test.-The test of interest in determining whether a witness who is not a party to the action is incompetent under section 829 of the Code of Civil Procedure, to testify to a personal transaction with decedent from, through or under whom one of the parties claim is, whether the witness will either gain or lose by the direct legal operation of the judgment or whether the record will be evidence for or against him in some other action. To render a witness incompetent the interest must be present, certain and vested and not one which uncertain, remote or contingent. Connolly v. O'Connor, 18 Civ. Pro. R. 8.

Dower-Wife.-An inchoate right of dower in an action in specific performance renders the testimony of the wife incompetent. Erwin v. Erwin, 18 Civ. Pro. R. 11.

Appeal-Stipulation.—A stipulation that all objections and exceptions to evidence are considered as taken by all the parties whose interests are antagonistic to them of the party offering the evidence, and that all available objections under section 829 and section 935 were taken and were overruled, that exception, were taken, is not available for any purpose on appeal. Greer v. Greer, 20 Civ. Pro. R. 71.

Agent.-A transaction done through an agent is a personal transaction within the meaning of the statute and testimony by the agent must be excluded. Herrington v. Winn, 20 Civ. Pro. R. 326. Attorney and Client.-Where an attorney is not interested in the result of a suit he is not incompetent to testify under section 829 Code Civ. Procedure. 20 Civ. Pro. Rep. 434.

Conversion. In an action against an executor to recover damages for the conversion by his testator of jewelry belonging to the plaintiff, the plaintiff is not incompetent under seetion 829 of Code of Civil Procedure to testify as to the value of the jewelry. Gregory v. Fichtier, 21 Civ. Pro. R.

Curtesy.-Husband.-The husband of a party to an action who claims an interest in real property is not incompetent to testify because his interest is a contingent one and not a vested one. Bowen v. Sweeney, 22 Civ. Pro. R. 79. See also Leary v. Corvin, 30 Civ. Pro. R. 38.

Replevin.-Testimony by the plaintiff that he delivered property, the subject of the action at the establishment of the defendant's testator is testimony of a personal transaction with the decedent and improperly admitted. 23 Civ. Pro. Rep. 321.

Crossexamination.-Where upon the cross examination of a witness testimony is received as to parts of certain cor versations occurring between himself and testator, such witness upon his re

Boyd v. Boyd, et al.

direct examination may testify as to the whole of said conversations notwithstanding the fact that the testimony so given would have been inadmissible under section 829 Code of Civil Procedure in a direct examination. Hackstaff v. Hackstaff, 24 Civ. Pro. R. 208. Executor.-Where objection is made by residuary legatees to an item of payment for which the executor claims credit upon his accounting, the executor is not a competent witness to prove a conversation had by him with the deceased wherein the deceased had stated in effect that the claim was a proper one and should be paid. In re Smith, 26 Civ. Pro. R. 377.

Mortgagor.-Where the mortgagor will be relieved as to a liability under a mortgage which the mortgagee really had agreed to subordinate, he is an interested party and cannot testify. Gardner v. Cohen, 28 Civ. Pro. Rep. 66.

Surety.-Maker of a promissory note cannot testify that he informed the surety that the note had been directed from its original purpose and that the surety assented. Benjamin v. Ver Nooy, 29

Civ. Pro. R. 120.

Mutual Mistake.--It seems that under option of purchase and sale providing that defendants could pay "the highest market price," for hides and "as much for the hides as anybody else," where such arrangements were made with a man deceased at the time of the trial, had objection been taken to this testimony it would probably have been excluded. Stern v. Ladew, 30 Civ Pro. R. 135. See also cited, Green v. Edick, 56 N. Y. 613, Cleft v. Moses, 112 N. Y. 426. For other cases in which this section has been passed upon see the following: Baxter v, Baxter, 13 App. Div. 65. Eckert v. Eckert, 13 App. Div. 490-493. Fuller v. Kent, 13 App. Div. 529–535. Rockwell v. Rockwell, 13 App. Div. 621-622. Hicks-Alixanian v. Walton, 14 App. Div. 199-201. Funson v. Salisbury, 15 App. Div. 214. Rix v. Hunt, 16 App. Div. 549-547. Matter of Potter, 17 App. Div. 267-268. Matter of Gould, 19 App. Div. 352–354. Patrick v. Williamson, 19 App. Div. 451–453. Boyd v. Boyd, 21 App. Div. 361-367. Gamber v. Gamber, 24, App. Div. 447. Matter of Weeks, 23 App. Div. 151-152. Cotes v. Cotes, 22 App. Div. 621-622. Sire v. Rosenquest, 28 App. Div. 238-243. Hoes v. Nagele, 28 App. Div. 374-378. Est. Georgi, 2 Law Record, 181-187. Stanton as Ex. v. Freund, 3 Law Record, 58-60.

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