Abbott v. Doughan — 138 A.D. 608

Majority

p. 608

Carrie Belle Abbott, Respondent, v. Alice E. Doughan, Individually and as Administratrix, etc., of James Doughan, Deceased, Appellant.

Third Department,

May 4, 1910.

Headnote

Witness — evidence — section 839 of the Code of Civil Procedure — disqualification.

In an action to recover a ring claimed to have been loaned to defendant’s intestate the testimony of one who sold the ring to plaintiff that he was present at the time of the loan and that the decedent took part in the transaction is not inadmissible under section 829 of the Code of’ Civil Procedure, for he has no interest in the issue involved, nor ever had.

A witness cannot be held disqualified under, that section as one.from whom a party derived his interest in the litigation unless the witness has some privity with the decedent. A witness from whom a party derived title is only disqualified under said section when siich witness, while owner of the title, was interested in the question at issue in such manner as would then have disqualified him..

Kellogg, J., dissented.

Appeal by the defendant, Alice E. Doughan,'individually and as administratrix, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the l-6th day Of September, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d

p. 609

day of October, 1909, denying the defendant’s motion for a new trial made upon the minutes.

Hinman, Howard db Hattell \_Arehibald Howard of counsel], for the appellant.

Ourtiss, Keenan da Tutlvill [Theodore R. Tuthill of counsel], for the respondent.

Plaintiff has brought this action to recover possession of a diamond ring, which she claimed to have loaned to James Doughan, defendant’s intestate. From a judgment entered upon the verdict of a jury in favor of plaintiff, and from an order denying defendant’s motion for a new trial, this appeal is taken.

One question only is raised by the appeal. This ring was purchased of one Ash, a jeweler, who was sworn as a witness for the plaintiff, and who testified in effect that the ring was purchased by the plaintiff and loaned to the defendant’s intestate; that such purchase and loan were made at a time when defendant’s intestate was present, and took part in the transaction. This testimony was "objected to on the part of the defendant as incompetent under section 829 of the Code of Civil Procedure, upon the ground that Ash was a person under whom the plaintiff derived her interest to the ring. in question. The objection was overruled, and the defendant excepted to the ruling.

In Rank v. Grote ( 110 N. Y. 12 ) one of the heirs of Frederick Grote brought ejectment against defendants for certain land in the possession of the defendants. The plaintiff’s case was made by the introduction of a deed from one Stein way and wife to Frederick Grote. The defense to the action was based upon the claim that, although the title to the land was taken in the name of Frederick Grote, the land was paid for by moneys of a partnership in which Frederick Grote was a member, and that title was taken in the name of Frederick Grote in trust for the benefit of the partnership. To prove the defense the grantor, William Stein way, was offered as a witness, and was allowed to testify to personal transactions with Frederick Grote, the deceased. This testimony was given over the

p. 610

objection that Stein way was an incompetent witness under section 829.. The court, in its opinion, says: “We do not think the evidence, is within the mischief of the statute. Tlie witness was wholly disinterested in the. question in reference to which he was sworn.” In Squire v. Greene ( 38 App. Div. 431 ) the trial involved the respective priorities of three mortgages,, the holders of which derived their title from one Nafis, who had died prior to the commencement’ Of the action. The assignor of two of the mortgages to Nafis was allowed against objection to testify to personal transactions with Nafis concerning such mortgages. Mr. Justice Cullen,.then a member, of the court, in writing for an unanimous court, says : “ The present holders of the three mortgages,, over the relative priorities of which we have this controversy, each derived her title from William H. Nafis, who died prior to the commencement of these actions. Maria N.. Anderson, as. appears by tlie report on the former appeal,^[1] at one' time held both the $3,000 mortgage,- now. owned by the respondents, and the $1,800 mortgage now owned by' the plaintiff Squire. She assigned these to Nafis. Mrs. Anderson testified as a witness on behalf of the respondents to personal transactions with the deceased Nafis relating to these mortgages. The' appellants insist that' Mrs. Anderson, was not a competent witness, as. to these transactions, for the reason that the respondents trace their title from her. We think the objection is not well founded. The title of Mrs. Andprson is not in' dispute, and had ceased by assignment to Nafis, under whom all parties claim, anterior to the transactions out of which the controversy grows. She has no . possible interest, nor do the respondents claim as successors to her rights. The exclusion of her testimony certainly does not come .within the spirit of the section of tlie Code of Civil Procedure, nor in our view within its terms. \ If the action were for a piece of real estate, and dependent on the validity of a will, could it be. sériously urged that, a witness was. disqualified from, testifying to -personal transactions with the testator by the fact that many years before he had owned the property in dispute ? ” Upon a subsequent appeal in that samé case this principle was. reiterated "by the same court, as appears in-47 Appellate Division, 636,. and' the decision therein, given was

* 32 App,! Div. 258;— [Rep..

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affirmed, by the Court of Appeals upon the opinion below in 168 New York, 659. (See, also, Rockwell v. Peck, 13 App. Div. 621 , 622.) We are referred to no cases by the learned counsel for the appellant, and we have been able to find none, wherein a witness has been held disqualified as a person from whom a party derived his interest in the litigation, unless such witness had some privity with the deceased person. If title had not passed would the witness be disqualified % If so, the witness could not qualify'himself by passing title with or without warranty. Here the witness neither has nor ever had any interest in this issue, and there can be no reason for holding the Code provision applicable to his testimony. "In Cary v. White ( 59 N. Y. 336 ), in referring to section 399 of the Code of Procedure, Judge Johnson" says: “ The various phrases employed in the statute to express the relation to the deceased, which precludes testimony from the opposite party as to personal transactions or communications with the deceased, indicate that the ruling idea is that of succession in interest to the deceased. It is against his executor, administrator, heir at law, next of kin, assignee, legatee, devisee or survivor, that evidence of his personal transactions and communications with the other party cannot be proved by such party. The party standing in each of these relations is considered as representing an interest which the deceased had, or is claimed to have had at the time of the transaction or communication sought to be proved, which interest was subsequently devolved on such party.” While the decision in that case construed another provision of the statute, it would seem to me that the same principle must apply to the provision of the statute in question and disqualify a witness from whom a party derived title only when such witness was, when the owner of the title, interested in the question at issue in such a manner as would then disqualify him.

The appellant seeks, however, to avoid the force of these authorities by asserting a claim of title from Asli himself, and not from the plaintiff, and, therefore, claiming a privity with Ash which would disqualify the witness. But this argument would seem to be a feto de se. The statute disqualifies only .certain vendors of the plaintiff. If the witness is shown to be a vendor of the plaintiff, then within the authorities the witness has no such relationship with the deceased under the circumstances here disclosed as would

p. 612

make his evidence incompetent. If the witness be tlie vendor of the deceased, then there can be no ground of disqualification found in the statute. So that in either case the witness would seem to be competent, and the ruling of the learned trial judge was right.

The judgment and. order should, therefore, be affirmed, with costs.

All concur, except Kellogg, J., dissenting.

Judgment and order affirmed, with costs.

Cases cited

Rank v. Grote 110 N. Y. 12 N.Y. 1888-06-05 p. 609
Cary v. White 59 N. Y. 336 N.Y. 1874-12-22 p. 611