Vanderveer v. Vanderweer — 17 N.Y. St. Rep. 1004

Majority

p. 1004

John E. Vanderveer, Resp’t, v. William Vanderweer and James Doyle et al, App’lts.

(Supreme Court, General Term, Second Department,

Filed July 21, 1888.)

Headnote

Witness—Competency op as to transactions with decedents—Code Civ. Pro., § 829.

Under Code Civil Procedure, section 829, evidence by plaintiff that certain clothing and money furnished him by defendant’s intestate, was on account of wages due him by deceased, and that deceased so stated, is incompetent, even upon redirect-examination, after plaintiff on cross-examination has been asked if he had not received such clothing and money, and aftjr the introduction by defendants in evidence, of checks given plaintiff by deceased and endorsed by plaintiff.

Appeal from a judgment in favor of plaintiff entered at a circuit court of King’s county.

The questions as quoted in the opinion, as asked plaintiff, were asked him on a redirect-examination, after the clothing and money mentioned bad been inquired about on his cross-examination. There had also been admitted in evidence two checks, given by defendant’s intestate to plaintiff with his indorsement thereon.

Morris & Pearsall, for app’lts; T. C. Cronin, for resp’t.

This is an appeal from a judgment in favor of the plaintiff, after a trial at the circuit, against the executors of his deceased mother. Without an examination of the merits, a new trial must be ordered on account of an erroneous admission of testimony on the trial. During the examination of the plaintiff as a witness in his own behalf, he was asked the following questions: “At the time that these articles of clothing were furnished to you, did your mother tell you what they were to be applied on ? What did she state she wras owing you for, and what was said about the clothing ? What did she say ? Did you make any requests of your mother for the clothes ? Do you mean to say that she told you to get this clothing on account of the wages due to you, that she said just these words ? Did she also pay you any money during your services ? Objections were interposed by the counsel to all these questions on the ground that they call for communications with the deceased, which were all overruled, and exceptions taken to such rulings. The answers to the questions disclosed transactions and communications with the deceased, and is a plain case of a violation of section 829 of the Code. Neither do we think that the introduction in the evidence of the two checks of the deceased woman to the plaintiff justified the admission of the testimony. The judgment and order denying the motion for a new trial should be reversed, and a new trial should be granted with costs to abide the event.