Hill v. Woolsey — 4 N.Y. St. Rep. 836

Majority

p. 836

William J. Hill and Minnie McDonald, as Ex’rs, etc., of John McDonald, deceased, Resp’ts, v. Charles S. Woolsey and others, App’lts.

(Supreme Court, General Term, Second Department,

Filed December 14, 1886.)

Headnote

Evidence—Of party interested in result inadmissible—Code Civ. Pro., | 839.

In an action brought by executors against sureties upon a lease given by the deceased to recover rent due thereon, the action being defended by two sureties upon the ground that they had been induced to sign the lease by the false and fraudulent representations of the lessor. Held, that the

p. 837

lessees were incompetent to testify to representations made by the deceased lessor and communicated by them to the sureties as to the value of the business, under Code Civil Procedure, section 829, on the ground that they were interested in the result, and being so interested, they could not reneat the representations of the deceased made to them when acting as the agents of the sureties.

Appeal from a judgment entered at the Kings county circuit on a verdict directed by the court in favor of the plaintiffs for balance due for rent of a furnished hotel at Coney Island, leased by John McDonald, the plaintiff’s testator, to the firm of Carpenter & Wise.

McDonald, the deceased plaintiff, proposed to lease his hotel at Coney Island to Carpenter and Wise. He exacted of them that they get sureties, and they asked these three defendants, Woolsey, Skinner and Schoonover (at an interview where all were present), to become the sureties They said substantially: “Go back to McDonald and get from him a statement of the business he did in this hotel the last season, the amount of his average bar receipts, the rent the rooms brought him.” They knew nothing of the business, and said they would not sign as sureties till McDonald, the deceased plaintiff, gave the particulars asked for, so they could see what risk they would be assuming.

The two proposed tenants, accompanied by one of the proposed sureties (Schopnover), and also by a disinterested person (Douglas), went back to McDonald, and a conversation ensued. What occurred, and what was said, is proven by said Douglas, the disinterested person, the testimony of the other persons on that head being excluded on the ground that being parties “interested in the event,” they could not testify “concerning a personal transaction Or communication” between them and the deceased McDonald. Douglas says that Wise, one of the proposed tenants, acted as spokesman.

By another witness defendants proved that these representations by McDonald were grossly false.

To prove that they were communicated to the sureties, that they had knowledge of them before they signed as as sureties, one of them, Schoonover, who was present and heard them, and the two proposed tenants, Carpenter and Wise, who went back from the interview with McDonald to the two other sureties, Woolsey and Skinner, were asked if they communicated to these sureties what McDonald said, and to state what they so said. But this was objected to, and the court excluded it on the ground that it would be testimony of parties interested in the event concerning a personal transaction or communication with the deceased plaintiff.

p. 838

_ Carpenter & Roderick, for resp’ts; A. H. Man and William J. Gainor, for applts.

This action is one against the lessees and sureties of the lessees upon a hotel lease, for the rent. The landlord who made the lease was one McDonald, who is represented by the plaintiffs.

The lessees make no defense, two of the sureties answer, Woolsey, Skinner and the other surety, Schoonover, appeal from the judgment. The answer of the two sureties sets up fraudulent representations made by McDonald, by reason of which the sureties were induced to sign the lease as sureties. Upon the trial it appeared that Carpenter and Wise, the lessors, applied to these sureties to become responsible for the payment of the rent. Woolsey, one of their number, requested that the lessors go to McDonald and ask for the amount taken in at the bar of the hotel in the previous years when McDonald kept the hotel. They went and obtained the answers and offered to prove the communication of the same to the two defending sureties. This evidence was objected to and excluded under section 829, of the Code. It appeared that the lessors were in possession of the hotel, and therefore were interested in the result, because a judgment in favor of the sureties would leave them in possession of the Jiotel, and a judgment against the sureties bound them. The witness Wise, one of the lessors was incompetent to carry the message to the sureties.

He could not testify to the representations made by McDonald to him.

That was a clear personal transaction with a deceased party to the contract. As the agent of the sureties being a party in interest, he could not repeat back the representations of the deceased.

As an independent witness he was excluded on his own account as a party interested in the result.

It is true, that, if McDonald was alive he could not deny what Wise told the sureties in his absence, but he could deny the conversation, and the validity of the testimony depended upon the declaration of McDonald.

The judgment should therefore be affirmed with costs.

Dykman, J., concurs.