Mercantile Safe Deposit Co. v. Dimon — 55 A.D. 538

Majority

p. 538

Mercantile Safe Deposit Company, Plaintiff, v. Charles L. Dimon, as Administrator, etc., of Stephen C. Dimon, Deceased, Respondent, Impleaded with Martha Keery, Appellant.

Headnote

Personal transaction with a decedent — an examination as to an affidavit, made by a party, narrating a transaction with the decedent, does not authorize the witness to state the entire transaction— discretion as ¡to costs, not disturbed on appeal.

A safe deposit company brought an action of interpleader, to determine the ownership of the contents of one of its boxes, against the administrator of the former owner of the box and a person who claimed that such former owner gave its contents to her during his last illness. The alleged donee, upon her cross-examination by the administrator, admitted that she had sworn to an affidavit, used on an application to the surrogate for an order directing the safe deposit

• company to permit the box to be opened, in which she deposed that “ during the last illness of said deceased he requested and directed deponent to take possession of all his keys, having before that time shown the deponent his said keys, and pointed to two of them as being the keys of his said private safe. That deponent has all of such keys now in her possession and verily believes that said deceased left a last will and testament, and that same is now locked up in said private safe to which the officers of the said Mercantile Safe Deposit Company will not allow .deponent or her attorney access without an order of the surrogate.”

Held, that the examination as to such admission did not. involve a personal transaction with the deceased and entitle the alleged donee, upon her redirect examination, to state the entire transaction; the testimony, as to the statements in the affidavit, relating not to what the transaction was, but to what was said about it;

That the discretion exercised by the trial court in awarding costs to the administrator would not be disturbed, although the judgment awarded the,alleged donee certain articles in the box as to which, however, there was no contest.

p. 539

Semble, that a party to an action against an executor or administrator who is asked by the executor or administrator any question which involves a personal transaction with the decedent, is at liberty to relate the whole transaction, and section 829 of the Code of Civil Procedure is not applicable thereto.

Appeal by the defendant Martha Keery from so much of a judgment of the Supreme Court in favor of the defendant Charles L. Dimon, as administrator, etc., of Stephen 0. Dimon, deceased, entered in the office of the' cleric of the county of New York on the 20th day of September, 1899, upon the decision of the court rendered after a trial at the New York Special Term, as follows: First. From that part of said judgment which provides as follows : “ It is further

“ Ordered, Adjudged and Decreed, that the plaintiff, the Mercantile Safe Deposit Company, deliver to the defendant Charles L. Dimon, as administrator of the goods, chattels and credits of Stephen C. Dimon, deceased,' the entire contents of the safe deposit box in the vaults of the Mercantile Safe Deposit Company, rented to said Stephen C. Dimon at the time of his death, and that the said Charles L. Dimon, as such administrator, is the owner of all therein, except the following articles, to wit:

“ Three English sovereigns;

“ One Bank of England note;

“ Two diamond earrings;

“ Bank pass book; and the “ Letter addressed to Mrs. Martha Keery; as to'the ownership of which by Mrs. Martha Keery no contest is made. And it is further

“ Ordered, Adjudged and Decreed, that the defendant Martha Keery has no right, title or interest in or to any of the contents of the said box, except the, articles hereinbefore particularly specified and set forth. And it is further

“ Ordered, Adjudged and Decreed, that upon the'delivery of the • entire contents of the aforesaid safe deposit box by the plaintiff to the defendant Charles L. Dimon, as such administrator, that then the said plaintiff be, and it hereby is, discharged from any and all claims of the defendants, or either of them, by reason of the moneys and property therein contained, and the said defendants, and each of them, their agents and attorneys, be and they hereby are enjoined

p. 540

and restrained from commencing or prosecuting any action or proceeding in any court against the said plaintiff upon their said claims, or for the recovery of such moneys and property, or any part thereof.”

Second. Also from that part of said judgment which provides as follows: “ And it is further

“ Ordered, Adjudged and Decreed, that the respective affirmative defenses or counterclaims of the defendant Martha Keery be, and the same hereby are, overruled and dismissed upon the merits.”

Thirrd. Also from that part of said judgment which provides as follows: “ And the costs of the said defendant Charles L. Dimon having been duly taxed at the sum of Twelve hundred and eighty-five and 83/100 dollars ($1,285.83), including the plaintiff’s costs as taxed, it is further

“ Ordered, Adjudged and Decreed, that the defendant Charles L. Dimon, as administrator of the estate of Stephen C. Dimon, deceased, recover of the defendant Martha Keery the sum of Twelve hundred and eighty-five and 83/100 dollars ($1,285.83) costs as taxed, including an extra allowance of 5 per cent on Sixteen thousand dollars ($16,000), which is hereby awarded to the said defendant Charles L. Dimon, amounting in the aggregate to said' sum of Twelve hundred and eighty-five and 83/100 dollars ($1,285.83), and that the said defendant Charles L. Dimon, as such administrator, have execution therefor.”

Roger A. Pryor and Theodore S. Friend, for the appellant.

William R. Wilder and John Fwen, for the respondent.

The action is interpleader brought by .the safe deposit company to determine the ownership of the contents of one of its boxes. The interpleaded defendants were Martha Keery on the one part and Charles Dimon, as administrator of Stephen C. Dimon, on the other; and the question was, which of these parties was entitled to the ownership of a tin box and its contents, which was deposited in one of the safes of the plaintiff which had been rented by Stephen Dimon in his lifetime. Mrs. Keery claimed that on the fifth of January, at the time of his last illness, Stephen Dimon gave to

p. 541

her the keys to his safe in the company’s building and to the box which was in the safe, and accompanied that transaction with directions that after devoting certain of the contents of the box to such purposes as were prescribed by him, she might do as she pleased with the rest. It was conceded that certain articles in the box belonged to her and as to these no further consideration will be given.

On Mrs. Keery’s behalf, testimony was given to prove the alleged gift. After that had been done she herself went upon the stand, but gave no testimony bearing upon the transaction between Stephen Dimon and herself. It appeared that after Stephen Dimon’s death, Mrs. ICeery claimed to be the sole legatee under his will and she applied to the surrogate for an order directed to the safe deposit company to permit the box to be opened so that the will, if there, might be produced. That order was put in evidence by Mrs. Keery. An affidavit had been presented to the surrogate upon which that order was granted. Mrs. Keery had not put that affidavit in evidence. TJpon her cross-examination that affidavit was presented to her by the counsel for the administrator of Stephen Dimon, who asked her the following question : “ Q. Do you remember swearing to this, ‘ That during the last illness of said deceased he requested and directed deponent to take possession of all his keys, having before that time shown the deponent his said keys, and pointed to two of them as being the keys of his said private safe. That'deponent has all of such keys now in her possession and verily believes that said deceased left a last will and testament and that same is now locked up in said private safe to which the officers of the said Mercantile Safe Deposit Company will not allow deponent or her attorney access without an order of the surrogate.’ Do you remember swearing to that ? A. Yes, sir, I believe I swore to that.”

Upon redirect examination by her own counsel her attention was called to this question and she was asked: “Do you recollect that conversation you had with the deceased, or that transaction ? ” This question was objected to on the ground that it was incompetent under section 829 of the Code. There is no doubt that if a party to an action against an administrator of a deceased person is asked by that administrator any question which involves a personal transaction with the decedent, that party is at liberty to relate the

p. 542

whole transaction, and section 829 in that case does not apply. (Nay v. Curley, 113 N. Y. 575 ; Mahoney v. Jones, 35 App. Div. 84 .) So that if the question asked of Mrs. Keery upon her cross-examination involved a personal transaction with Stephen Dimon she was entitled to go into the whole transaction, and it was error to exclude that evidence; but I do not think that that question involved such a transaction.

Mrs. Keery had upon her direct examination given no testimony as to that transaction. She had, however, before the trial made an affidavit as to a conversation between herself and Dimon which took place at about the same time as the one at which she claimed the gift had been made. That affidavit was offered, not for the purpose of contradicting her, but only as an admission by her that what was alleged to have taken place when the gift was made did not take place. The claim of the administrator was that this woman at the time after the death of Dimon had made an admission which ■ was inconsistent with the claim she made on the trial. He did not seek to prove by her what took place at the time of the gift, but only what she had said about it afterwards, and the question presented by his evidence was whether she had in that affidavit made an admission which was fatal to her claim now made. Undoubtedly with respect to that admission when it was put in evidence she was entitled to have every word of it from beginning to end, and she was entitled to have put in evidence the whole affidavit, not for the purpose of showing what took place between herself' and Stephen Dimon and what their talk had been, but • for the purpose of showing what she had said about it in the paper in order that the judge might see whether that admission was harmful to her claim.. So far as it went she stood on the same footing as any other witness. Supposing that another witness had been upon the stand to testify that at the time of the application to the surrogate for the order after Dimon’s death, Mrs. Keery had made the admission contained in the affidavit. Undoubtedly that testimony would authorize the cross-examination of that witness as to everything which was said at the time of the admission; but that would be the extent of the cross-examination in that regard, and the fact that he heard the original transaction and was able to testify to it would not be of the slightest importance, because it must be clear that his testimony was not

p. 543

as to what the transaction was, but what was said about it. The same rule should be applied to the testimony of Mrs. Keery, and, therefore, there is no question in my mind that the evidence was admissible and that the ruling was correct.

We have examined the other exceptions taken to the rulings of the court at Special Term upon questions of evidence, and are of the opinion that none of them afford any reason for the reversal of this judgment. Upon the whole case the determination of the Special Term was fully warranted by the evidence.

The award of costs in these cases is, as is well known, discretionary, and with that discretion the appellate court will not interfere unless it is quite clear that it is erroneously exercised. That is not apparent here. It is true that the judgment awards to Mrs. Keery certain articles which were in the box of the intestate, but as to those articles there was really no contest. Mrs. Keery was called upon to make formal proof as to them, and that having been done her right to them was admitted, and the serious contest throughout the trial was with' reference to the other articles of value which were claimed by her and the administrator. Upon the issues really involved in the ease the administrator has succeeded and was entitled to his costs. It does not appear in the record that there was any error or irregularity in the award of an additional allowance. The case is not within the case of Bush v. O'Brien ( 52 App. Div. 452 ) for reasons which will clearly appear upon a cursory examination of that case.

Upon the whole case we are of the opinion that the determination of the learned justice at the Special Term was correct, and that the rulings made by him were not erroneous, and, therefore, the judgment must be affirmed, with costs.

Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.

Judgment affirmed, with costs.

Cases cited

Nay v. Curley 113 N. Y. 575 N.Y. 1889-06-04 p. 542