Waterhouse v. Gilman

Headnote

Witness—Evidence of transactions with agent of deceased principal NOT OBJECTIONABLE UNDER SECTION 829, CODE' ClVIL PROCEDURE.

In an action by an administrator on a note where the defendant testified as to transactions with the agent of the deceased payee, and the plaintiff objected that the evidence was incompetent under section 829, Code Civil Procedure, in that it was “ concerning a personal transaction between the witness and the deceased party.” Held, that the evidence given by defendant was not of any transaction with the plaintiff’s intestate; that the testimony as to transactions with the agent of the latter was not objectionable.

This action was brought in the city court of New York upon a promissory note given to one Orrin F. Waterhouse, who died and bequeathed the note in suit to Lurana Waterhouse, whose administrator sues.

The defense is usury and the defendant himself was the only witness called to establish the defense. The transactions in relation to the note, when given, were with a Mr. Hudson, who represented the promisee, who, it does not appear, was present.

The plaintiff objected that the testimony of defendant was incompetent in that a “party should not be examined as a witness in his own behalf against the administrator, etc., concerning a personal transaction between the witness and the deceased person.” § 829 Code Civ. Pro.

The trial resulted in a judgment for the defendant, which has been affirmed both by the general term of that court and of this. Motion is made for leave to appeal to the court of appeals.