Sager v. Dorr — 21 N.Y. St. Rep. 635

Majority

p. 635

Catharine Sager, Resp’t, v. Margaret E. Dorr, Administratrix, etc., of Elisha Dorr, Deceased, App’lt.

(Supreme Court, General Term, Third Department,

Filed February 7, 1889.)

Headnote

Evidence—When admissible against administateix—Code Civ. Peo., §839.

Where in an action against an administratrix for board furnished deceased, the defense was that the deceased paid for the household supplies in return for board, the plaintiff was allowed to testify in her own behalf that she paid for all- family supplies herself, and that no one else did. Held, that if by this testimony was meant that she paid for them personally, and that all transactions were between herself and tradesmen, and not between her and deceased, it is not obnoxious to § 839 of the Code Civil Procedure.

Appeal from a judgment entered in Albany county upon the report of a referee, appointed under the statute upon a claim presented by the plaintiff against the defendant, as administratrix; also from the order confirming the referee’s report, and denying the motion to set it aside;

The claim was for board furnished by the plaintiff to the ■deceased. The defense was that the deceased furnished the househould supplies in return for his board.

N. Q. Moak, for app’lt; A. J. Parker, for resp’t.

The testimony on the part of the plaintiff, tended to show that Elisha Dorr, the defendant’s intestate, had boarded with her for upwards of six years prior to his death, that he had repeatedly stated that he was boarding with and had not paid her. The testimony on the part of the defendant, was to the effect that Dorr did live or board with the plaintiff under an agreement which was fully performed by him, to the effect that he should pay the expenses of the table and household in return for his board and lodging.

Much testimony was given in support of these respective claims. The finding of the referee in favor of the plaintiff is within the evidence tending to establish her claim and amply supported by it.

The only question we shall examine is whether certain testimony given by the plaintiff in support of her claim was properly admitted under section 829 of the Code. She was permitted to testify, notwithstanding objection, that she paid- for the meat, flour and other family supplies, and that no other person paid for them. This testimony tended to rebut the claim which the testimony of the defendant tended to support, that the decedent paid for his board by furnishing such supplies.

The defendant, the administratrix, had testified in her own behalf to conversations between the deceased and herself in the presence of the plaintiff at the house of the lat

p. 636

ter, in which the deceased spoke about buying tea and coffee, ham and pork, and the prices he paid for them. She also testified that on one occasion the deceased said to the plaintiff that he would buy a barrel 'of flour and some buckwheat the next time he went to the city, and that soon after the deceased and defendant went to the city and. deceased ordered a barrel of flour and some buckwheat-flour, and they were placed in the wagon of the witness- and delivered t-o the plaintiff at her house; that she frequently saw the deceased carry baskets of groceries to the-plaintiff’s house.

Several of the next of kin of the deceased testified in behalf of the defendant to similar conversations between them and the deceased in the presence of the plaintiff also to the purchase of household supplies by the deceased, and the delivery of them to the plaintiff.

The plaintiff then, as a witness in her own behalf, was-examined respecting the same transactions between herself and the deceased and his conversations in her presence, of which the defendant and the next of kin had spoken. No-objection is urged to this portion of her testimony.

But, under objection taken under section 829 of the-Code, and overruled, she testified that she paid for all her familiy supplies herself, and that no one else did.

In one aspect of the case, this was equivalent to her testifying that she paid for them through Dorr, as her agent, and would imply the personal transactions between herself' and Dorr which constituted him her agent. If this were-the only aspect in which her testimony could be considered, it would be difficult to justify the admission of the testimony, for a single fact whose only significance is that it is-the sum of the personal transactions between the party and the deceased, and implies their occurrence, would be in effect equivalent to the testimony detailing the transactions-themselves.

But the testimony of the plaintiff does not of itself show that the plaintiff meant to be understood that she did not personally pay for the supplies. If defendant’s counsel had supposed her to mean that she paid for them through Dorr as her agent, he should have asked her if such was her meaning. If she had said yes, then the inadmissibility of the evidence would have appeared. But as it is, her testimony seems to signify that she paid for them personally, and if so, then that transaction was between herself' and the tradesmen, and not between her and the deceased, and therefore not obnoxious to the provision of the Code. The objection was properly overruled.

The claim of the defendant that the plaintiff destroyed or

p. 637

abstracted any of the papers of the deceased, does not-appear to be established by the evidence.

Judgment affirmed, with costs.

Learned, P. J., and Ingalls, J., concur.