Connolly v. O'Connor — 26 N.Y. St. Rep. 840

Majority

p. 840

Mary J. Connolly, Resp’t, v. Mina E. O’Connor, Admrx., App’lt.^[1]

(Court of Appeals,

Filed October 22, 1889.)

Headnote

Evidence — Code Crv. Pso., § 829.

The mother of a bastard child is competent, in' an action upon an alleged promise of its father to pay for its support, to testify as to the conversation at which the agreement was made, although the father has since died, and is not interested in the event of the action under Code Civ. Pro., § 829. Her interest, if any, is remote, contingent and uncertain.

Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered on report of referee against the defendant.

Action upon an alleged promise of the defendant’s intestate to pay the plaintifi for taking care of a bastard child of which he had been adjudged the father.

On the trial the mother of such child was permitted to testify as to the conversation between plaintiff and the intestate which constituted the agreement. She was present at the conversation, but took no part in it.

Morgan & French, for app’lt; Wm. D. Edmonds, for resp’t.

The witness, Lucy Mooney, was not a party or jn’ivy to the action. She was therefore a competent witness to prove the alleged contract between the plaintiff and the defendant’s intestate unless she was interested in the event, even assuming that her testimony involved a personal transaction between herself and the intestate. Code, § 829. We think she was not interested in the event of the action within that section. In construing .that section it has been held that the test of interest, where the witness is not a party, is that the witness “ will either gain or lose by the direct legal operation of the judgment, or that the record will be legal evidence for or against him in some other action. It must be a present, certain and vested interest, and not an interest uncertain, remote' or contingent.” Hobart v. Hobart, 62 N. Y., 81 ; Wallace v. Straus, 113 id., 238; 22 N. Y. State Rep., 984.

The recovery of a judgment by the plaintiff in this action against the administratrix of O’Connor would not bar a subsequent action by the plaintiff against the witness to recover for the support of the child, nor would it establish that the expanses incurred by the plaintiff in its support were incurred under circumstances which precluded her from enforcing the common law liability of the mother of a bastard child to provide for its support and maintenance. The fact that the support was furnished by

p. 841

the plaintiff under a contract with the father might constitute a defense to a suit against the mother. But a judgment against the administratrix of the putative father in this action, to which the witness was neither a party nor privy, would not be conclusive upon the plaintiff in favor of the mother, in a subsequent action against her, that the plaintiff furnished the maintenance under such a contract, nor, indeed, would the record be evidence that such a contract had been made.

The evidence of Lucy Mooney tends to show that the plaintiff took the child as her own, acting in respect to it in loco parentis, thereby precluding herself from claiming that the maintenance was furnished on account of the mother and on her credit.

We think the interest of the witness in the event of the action was, if any, “remote, contingent and uncertain,’’ and was an interest in the question as distinguished from an interest in the event. Without, therefore, considering whether the testimony of the witness Avas concerning a personal transaction between herself and the defendant's intestate, we think the judgment should be affirmed on the ground that she was not a party, or a person interested in the event of the action within the meaning of the Code.

Judgment affirmed.

All concur, except Ruger, Ch. J., and Andrews, J., not voting.