Myers v. Hunt — 38 N.Y. St. Rep. 739

Majority

p. 739

Bridget Myers, Resp’t, v. Daniel Hunt, Ex’r, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 11, 1891).

Headnote

Evidence—Code Civ. Pito., § 829.

Upon a reference of a disputed claim upon a note purporting to have been made by defendant’s testator, the claimant was allowed to testify that deceased had never paid the note, principal or interest. Meld, that this was a personal transaction with the deceased, and was inadmissible under § 829 of the Code.

Appeal from judgment in favor of plaintiff.

Arthur T. Hoffman, (John H. Clapp and Jarvis W. Mason of counsel), for app’lt; Chas. H. Noxon, for resp’t.

Bridget Myers presented a claim against the estate of Harrison Hunt, deceased. The claim is based upon what purports to be a note given by deceased to the plaintiff April 1, 1884, for $750. The claim was referred under the statute, and the referee has reported in favor of the entire claim, with interest, from the date of the note. The proof of the transaction out of which the note arose, was not given. The maker of the note is dead, and the holder cannot testify under § 829 of the Code as to a personal transaction with the deceased. Proof was given of the handwriting of deceased to the note. It is quite uncertain. The witnesses spoke very hesitatingly. The executor produced several witnesses who testify that the signature to the note was not made by deceased. The testator died about the last of 1889, or the beginning of 1890, apparently, and the note shows that no interest was endorsed upon it. Under this evidence the finding of the referee would be one of fact and not properly reversible on appeal.

The claimant, however, was permitted to testify under the defendant’s objection and exception that the deceased had never paid the note, principal or interest. This was a personal transaction with the deceased, and was admitted erroneously. Lerche v. Brasher, 104 N. Y, 160 ; 4 N. Y. State Rep., 335 ; Clift v. Moses, 112 N. Y, 426 ; 21 N. Y. State Rep., 777.

The evidence may have affected the result. The case was very doubtful on the evidence of handwriting and on the circumstances surrounding the claim. This plaintiff was not rich, and was in debt, and no effort seems to have been made to collect the note during testator’s lifetime.

The judgment should be reversed, and a new trial had at the circuit, .with costs to abide event.

Dykman and Pratt, JJ., concur.