Hartig v. Hartig — 147 A.D. 6

Majority

p. 6

Clarence F. Hartig, by James P. Fitzsimmons, His Guardian ad Litem, Respondent, v. Henry J. Hartig, as Executor, etc., of John C. Von Glahn, Deceased, Appellant.

Second Department,

November 10, 1911.

Headnote

Decedent’s estate — claim for services — evidence — personal transaction with decedent—section 829, Code of Civil Procedure — disregard of testimony by court does not cure error.

Where in- an action against an estate, tried before the court without a jury, to recover the value of certain alleged services, the plaintiff is peiv mitted over proper objection and exception to testify to personal transactions with the deceased in violation of section 829 of the.Code of Civil Procedure, the error is fatal to a judgment in his favor. '

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Such error is not cured because in the court’s opinion it is stated that he disregarded plaintiff’s testimony and that outside of this he found evidence to support the claim.

As such testimony is forbidden by statute, it must be presumed to have prejudiced the rights of the defendant. •

Appeal by the defendant, Henry J. Hartig, as receiver, etc., from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 26th day of June, 1911.

N. J. Lamey, for the appellant.

John B. Quintin, for the respondent.

The plaintiff, an infant, brings this action against his father, as executor of the estate of John C. Von Glahn, deceased, to recover the value of alleged services rendered to the deceased during his last illness. The plaintiff appeared as a witness in his own behalf, and was permitted, over the objection and exception of defendant, to testify to his services for the decedent in substantially the same manner that was condemned in the case of Taylor v. Welsh ( 92 Hun, 272 ), and with this testimony in the case the learned court has foimd in favor of the plaintiff, giving him judgment in the sum of $252. In an opinion handed down by the court it is stated that he disregarded the evidence of the plaintiff, and that outside of this testimony he finds evidence to support the claim, but this does not cure the error. The objection was seasonably and persistently raised, by the defendant, and the evidence was admitted, and a subsequent witness, testified to the value of the services based in a measure upon the testimony of the plaintiff as to what he had done. This was a case coming within the requirement that “ The courts should see to it that such estates are fairly protected against, unfounded and rapacious raids” (Matter of Van Slooten v. Wheeler, 140 N. Y. 624 . See, also, Yates v. Root, 4 App. Div. 439 ,. 443, and authorities there cited), and because incompetent testimony was received, contrary to the provisions of section 829 of the Code of Civil Procedure, the judgment should, not be permitted,to stand., We cannot, know

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what influence this testimony had in determining the case, and being forbidden by statute, it must be presumed to have prejudiced the rights of the defendant.

The judgment should be reversed and a new trial ordered, costs to abide the event.

Jenks, P. J., Burr, Thomas and Carr, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to-abide the event.

Cases cited

Van Slooten v. Wheeler 140 N. Y. 624 N.Y. 1893-11-28 p. 7