Campbell v. Maginn

Headnote

Evidence—When testimony of defendant as to conversation of third party with deceased, in which conversation defendant tools no part, not admissible under § 829, Code Civ. Pro.

Appeal by defendant from judgment and from order denying motion for new trial on the minutes.

The question litigatedpn this case, was whether or not the defendant employed the plaintiffs’ intestate, Sanford, to do certain repairs on premises at the corner of Hudson and Canal streets, for which the plaintiffs sought payment herein. In March, 1883, the defendant rented the store and cellar of the house from one Wolberg, who was himself a tenant ,of one Marshall, the owner thereof. The repairs were begun by Sanford about May 1. The death of Sanford made if impossible to prove by direct

evidence, with whom the agreement for this work was made, and the plaintiffs’ case depended on evidence of various directions and orders, given by defendant to the artizans who had been employed by' Sanford to do the work, and the defendant’s declaration that he was the person who would pay for the work, tending to show that he regarded himself and held himself out as responsible for payment, and entitled to direct as to the progress of the work. That such directions were given and declarations made, defendant denied at the trial; and on that subject the case was given to the jury on the conflict of testimony. The defendant excepted to the refusal of the learned trial judge to admit testimony of defendant as to a conversation concerning the work in question, which took place between Marshall, the owner, Wolberg, the lessor of the defendant, and Sanford, since deceased, at which the defendant was present. The defendant testified that he did not join in the conversation.

The Court at General Term (after stating the facts as above), said :—“If it was on the subject of the plaintiffs’ claim in this action, and relevant to the defense, it was not admissible under section 829 of the Code of Civil Procedure. It is held in Holcomb v. Holcomb ( 95 N. Y. 325 ), that this statute is a beneficial one and ought not to be limited or narrowed by construction ; that the policy' of the statute excludes the evidence of an interested witness concerning all communication between the person deceased and the witness, including communications in the presence or hearing of the witness, if he was, in any way, a party thereto, or communications to either one or two or more persons, if all were interested. Under this liberal construction, the testimony of the defendant, in this instance was properly excluded. There was enough of evidence in the case t.o sustain the verdict.” •