Majority
p. 144George W. Russell and Frederick T. Russell, as Executors, etc., of William F. Russell, Deceased, Appellants, v. William Mc. Russell, Respondent.
Headnote
Personal transaction between the plaintiffs’ testator and the defendant — what proof by the plaintiffs does not allow the defendant to testify to it.In an action by executors to recover rent alleged to be due to their testator the introduction by the executors of evidence of entries in the books of the decedent showing a charge for the rent, made in the absence of the defendant, does not authorize the defendant to testify that the testator never demanded the rent from him.
Appeal by the plaintiffs, George W. Russell and another, as executors, etc., of William F. Russell, deceased, from a judgment of the Supreme Court in favoi* of the defendant, entered in the office of the clerk of the county of Ulster on the 14th day of April, 1899, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 13th day of April, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
The action was brought to recover for the rent of a store from May 1, 1887, to May 1, 1896, at $130 per year, amounting to the sum of $1,180.83.
The defense was the Statute of Limitations for part of the rent prior to June 1, 1892, and for a second defense the defendant alleged a special contract made with the plaintiffs’ testator in his lifetime, by which, in consideration of the defendant’s looking after and caring for the building, of which the store occupied.by the defendant was a part, the deceased agreed to give the defendant the use of the store without rent.
Upon the trial the defense of the Statute of Limitations as to a part of the claim was sustained. As to the special contract alleged by the defendant, evidence was given of the performance by the defendant of services in and about the building, and also of a conversation had by one of the defendant’s witnesses with the deceased, in which the deceased stated that he had not charged the defendant rent for some years.
In answer to this testimony, one of the plaintiffs was called as a
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witness and produced a book in regard to which he testified as follows : “ I found this book in the desk of William F. Russell after his death. Page one of that book is the handwriting of William F. Russell, excepting the last two items charged. The general nature of the items shown' upon that page of that book is store rent beginning April 1st, 1884, charged each year until April 1st, 1895, and then one month added on afterwards, and then there is a credit for three years, from 1884 to. 1887, in'William F.’s handwriting.”
The defendant was then recalled as a witness and was asked the following question : “ Q. Mr. Russell, in the year 1887, the first day of April, 1887, until the time of his death, did William F. Russell ever ask or demand of you any rent ? ” This was objected to as calling for a personal transaction between the witness and William F. Russell, the deceased, under section 829 of the Code of Civil Procedure. The objection was overruled — the. plaintiff excepted, and the witness answered no.
In the view that is taken of the case it is unnecessary to state any further facts.
Peter Cantine and Chas. F. Cantine, for the appellants.
Alvah S. Newcomb, for the respondent.
The only question of consequence arising in this case is the one last referred to in the foregoing statement of facts, arising under section 829 of the Code of Civil Procedure.
“ The rule is that where an executor who is a plaintiff testifies in his own behalf to a personal transaction between the deceased and the defendant, then the defendant becomes a competent witness in his own behalf with respect to the same i/rcmsaction, but not other or different transactions.” (Rogers v. Rogers, 153 N. Y. 343 , 350.)
I do not think that charging the matter upon his books in the absence of the person so charged, constitutes a personal transaction between the parties. Assuming, however, that it is such a transaction, it is a separate and distinct transaction from that of demanding payment of the amount so charged. The entry of an alleged
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indebtedness upon one’s books, and the demand from the person so-charged of its payrhent, are separate and distinct transactions, and the question asked of the defendant, and which .he was permitted to-answer, was as to a separate transaction from that testified to by the plaintiff, and should not have been admitted. The error was material, and for that reason the judgment should be reversed.
All concurred.
Judgment and order reversed and a new trial granted, costs to-abide the event.
Cases cited
- Rogers v. Rogers 153 N. Y. 343 at 350 p. 145