Eighmie v. Taylor

MARTIN, J.

The first and most serious question presented on this appeal is whether the court properly admitted the evidence of the plaintiff’s wife as to the conversations and transactions which took place between her husband and the defendant’s intestate, she being the real party in interest. When this evidence was offered she was clearly interested in the event of the action. The respondent contends that, as she was not interested when the conversations and transactions occurred, she was competent at the time of the trial. We find no authority sustaining this claim. It was held in Comins v. Hetfield, 80 N. Y. 261 , that the disqualification, under section 399 of the old Code, depended entirely upon the facts as they existed at the time when the testimony was given. In Farnsworth v. Ebbs, 2 Hun, 438 , 440, it is said:

“The test of the prohibition contained in section 399 of the Code is not whether the interests of the witness were the subject of the transaction or communication. Cases will often arise when a witness cannot be permitted *252 to testify to a transaction or communication in which he had at the time no interest. For example, when an admission has been made respecting property of which the witness afterwards became the owner or when the witness acted for another in a transaction in the subject of which he afterwards acquired an interest.”

See, also, Wooster v. Booth, 2 Hun, 426 ; Andrews v. Bank, 7 Hun, 20 ; Hadsall v. Scott, 26 Hun, 617 ; Church v. Howard, 79 N. Y. 415, 420 ; Miller v. Montgomery, 78 N. Y. 282 . The rule must be the same under section 829 of the present Code, and the witness was, we think, incompetent to give any evidence which was within the inhibition of that section.

This leads to the consideration of the question whether she was competent to give evidence of the transaction and conversations which were the basis of this action. ' The authorities bearing upon this question are somewhat in conflict, and it may be well to examine some of the principal cases, to the end that we may, if possible, ascertain the rule that should be applied in this case.

In Simmons v. Sisson, 26 N. Y. 264 , it was held that section 399 of the old Code did not prohibit a party sued by an administrator from testifying to a conversation heard by him between the deceased and a third person. This case was followed by Cary v. White, 59 N. Y. 336 , where it was held that, under section 399, a party was not precluded by that section from testifying to statements made by a deceased person to a third' party, although the witness participated in the conversation, so long as his testimony was limited to what was not personal between him and the deceased. The doctrine of that case, when applied to a conversation in which the witness did not join, was reaffirmed in Hildebrandt v. Crawford, 65 N. Y. 107 . The opinion of the court in the latter case was to the effect that a party might testify to a conversation, heard by him, between a principal and agent, who were both dead, as against a successor in interest of the principal. The doctrine of those cases was again recognized in Badger v. Badger, 88 N. Y. 559 , limited, however, to conversations in which the interested witness took no part.

In Holcomb v. Holcomb, 95 N. Y. 316, 325 , in discussing this question, it was said:

“The words of exclusion are as comprehensive as language can express. Transactions and communications embrace every variety of affairs which can form the subject of negotiation, interviews, or actions between two persons, and include every method by which one person can derive impressions or information from the conduct, condition, or language of another. The statute is a beneficial one, and ought not to be limited or narrowed by construction. Although it must appear that the interview or transaction sought to be excluded was a personal one, it need not have been private, or confined to the witness and deceased. If they participated, it does not change its character because others were present. A contrary rule would defeat the reasonable intent of the statute that a surviving party should be excluded, as one interested, from maintaining by his testimony an issue which in any degree involved a communication or transaction between himself and a deceased person.”

—And the case of Cary v. White, 59 N. Y. 336 , was again under consideration, and it was there said:

*253 “In the case of Cary v. White the court regard It as settled that the provisions of the Code, (section 399,) there; under consideration, and which were not unlike those now in force, (section 829,) do not preclude a party from testifying to the statement of a person deceased, made to a third person in the hearing of a witness.”

But Judge Danforth, in the opinion in that case, subsequently adds:

“If, wliile the decedent is conversing with a third person,, the witness by word or sign participates in it, or is referred to, his evidence of what occurred cannot be received.” .

In Lane v. Lane, 95 N. Y. 494, 502 , in discussing this question, it was said:

“Something may have occurred by word or act in the presence of the testator, and between him and others, to which she [the testator’s wife] was not a party, and of which she could testify.”

—Citing Cary v. White, 59 N. Y. 336 ; Kraushaar v. Meyer, 72 N. Y. 602 . In the latter case it was held that, although a party was not incompetent, under section 399 of the old Code, to testify to an independent conversation between the deceased and a third person, yet, if he participated in the conversation, and it related to a transaction between him and the deceased, he was incompetent.

In Brague v. Lord, 67 N. Y. 495 , where, in a conversation between the decedent and another, in the presence of a witness who was disqualified under section 399, and the statement proved appeared to have been addressed to the plaintiff as well as the other, indicated only by his turning towards the plaintiff when the statement was made, it was said that the witness was incompetent, and the admission of the evidence was error.

In Simmons v. Havens, 101 N. Y. 427, 433 , 5 N. E. Rep. 73, the plaintiff was allowed to testify to conversations between her deceased mother and the defendant, at which she was present, but it did not appear she took any part in the conversation; and the admission of her evidence was held proper, and sustained by the case of Cary v. White, 59 N. Y. 336 , thus substantially reaffirming the doctrine of that case, as limited in the preceding cases to conversations between a decedent and a third person in which she took no part.

In Re Will of Eysaman, 113 N. Y. 62 , 20 N. E. Rep. 613, where the probate of a will was contested on the ground of want of testamentary capacity on the part of the testator,, it was held that a witness who was not competent under section 829 was not only not competent to testify as to the transactions directly between the witness and the deceased, and communications by the latter to the former, but was disqualified to testify to any transactions between the deceased and others in any portion of which the witness participated, or any conversation in his hearing, although not with, or addressed to, him. In the opinion in that case it is said that the case of Cary v. White, 59 N. Y. 336 , is not an authority for the admission' of such evidence. In discussing that case, Buger, C. J., criticises it as follows:

“Several grounds for the conclusion reached in that case were stated, but a single judge only concurred with the opinion; two judges concurred in the *254 result, and two • dissented; the remaining judge not voting. One of the grounds suggested in that case was that the party objecting to the evidence offered was not an assignee of the deceased person, within the meaning of the statute. The evidence there sought to be given consisted of a declaration made by the deceased person to his own attorney in the presence of the plaintiff. The point was presented upon an objection to the question calling for the evidence, which was sustained by the trial court. The judge who wrote in this court was of the opinion that the question excluded did not necessarily relate to a personal communication or transaction between the deceased person and the witness, and was, therefore, competent. The case cannot be considered an authority upon the question here presented.”

In Re Dunham, 121 N. Y. 575 , 24 N. E. Rep. 932, where the probate of a codicil to a will was contested on the ground of undue influence, restraint, and mental incapacity, a residuary legatee was called by the contestants, who offered to prove by him conversations and transactions of the testator with the witness and others in his presence. The evidence was excluded. The court of appeals held that the evidence was inadmissible. In the opinion in that case it is said:

“The object of the proposed evidence could only have been to show undue influence or restraint exerted upon the deceased, or his mental incapacity. * * * Therefore, while, as to any communications or transactions with the witness, the proposed evidence was plainly enough inhibited by section 829 of the Code, his testimony as to the conversations or transactions, while he was present in the room, had between the deceased and other persons, was, under the circumstances, inadmissible.”

—Citing the cases of Holcomb v. Holcomb, 95 N. Y. 316 , and In re Will of Eysaman, 113 N. Y. 62 , 20 N. E. Rep. 613, and then it is said:

“The ground for the ruling is that communications in the presence of the witness are deemed to be made to him. While the ruling may be said to be stretched to the extremest tension, it has the merit, possibly, of being in furtherance of justice. The evidence is intended to work here against the respondent, who derives her interest under the testator’s codicil, and whose lips are sealed by the law as to the matters; and to permit a witness, so much interested as this one was in the amount of the estate ultimately distributable, to testify to things said and done by testator, though with others, but while he was present, with the only supposable purpose of affecting the interests of the respondent, would certainly seem to be giving an undue advantage to the one as against the other. This is certainly true if the evidence sought to be elicited is material in its bearing upon the question of restraint or influence upon the testator, or upon his disposing strength of mind. * * * This section of the Code offers considerable difficulty in the endeavor to give to its provisions a reasonable and just interpretation, and each case, as it arises, may, in its circumstances, control the application of the rule intended to be established by the legislature.”

In Devlin v. Bank, 125 N. Y. 756 , 26 N. E. Rep. 744, which was in effect an action to establish a gift causa mortis, the plaintiff offered to prove that she was present at a conversation between her uncle, through whom she claimed, and a Catholic priest. This evidence was objected to and excluded. It was held that, inasmuch as there was nothing to show that she could testify to any fact that was material, it did not appear that any injury resulted from the ruling. Judge Peckham, who wrote the opinion, then added:

“It is doubtful if the witness could be permitted to testify as to a conversation in her presence between her uncle and Father Oarew relative to the *255 gift she claimed. The cases of In re Will of Eysaman, 113 N. Y. 62 , 20 N. E. Rep. 613, and In re Dunham, 121 N. Y. 575 , 24 N. E. Rep. 932, have very greatly limited the old rule in regard to such conversation.”

In the case of Petrie v. Petrie, 126 N. Y. 683 , 27 N. E. Rep. 958, where the validity of the will of Nicholas H. Petrie was the only disputed question, the plaintiff was permitted to testify to a conversation she overheard between her father [the testator] and her brother Morgan, in which the latter urged his father to change the disposition he intended to make for the benefit of the plaintiff. This testimony was objected to as incompetent under section 829 -of the Code of Civil Procedure. Upon that question, the court said:

“The ruling of the trial court upon the objection to the above question would present a somewhat important point under the construction which this court has given to sction 829, in recent cases, if it could be held that the answers in any degree affected the result.”

—Citing Holcomb v. Holcomb, 95 N. Y. 326 ; In re Will of Eysaman, 113 N. Y. 72 , 20 N. E. Rep. 613; In re Dunham, 121 N. Y. 575 , 24 N. E. Rep. 932. But the court held that the evidence was harmless. In discussing that question, the court adds:

“With the issue of fraud and undue influence out of the case this testimony might, very -prudently, have been given by the defendant.”

In Adams v. Morrison, 113 N. Y. 152 , 20 N. E. Rep. 829, where •the question was whether the plaintiff was a partner with his deceased father, the plaintiff offered to prove by his own testimony that about the time he claimed the partnership was formed the decedent made an entry in his presence in a docket or register of the name of himself and the "plaintiff as a firm. This was objected to ■ as incompetent under section 829, and excluded. The court held that it involved a personal transaction between the decedent and the witness, and that the plaintiff was incompetent; citing Holcomb v. Holcomb, 95 N. Y. 316 ; Clift v. Moses, 112 N. Y. 426 , 20 N. E. Rep. 392; In re Will of Eysaman, 113 N. Y. 62 , 20 N. E. Rep. 613.

In the following cases it was held that an interested witness may testify to a conversation between a decedent and a third person in which the witness did not participate: Stern v. Eisner, 51 Hun, 224 , 4 N. Y. Supp. 406 ; Smith v. Ulman, 26 Hun, 386 ; In re Brown, (Sup.) 14 N. Y. Supp. 122 ; Conolly v. O’Connor, (Sup.) 1 N. Y. Supp. 489 , affirmed (N. Y. App.) 22 N. E. Rep. 753,—but upon the ground that the witness was not interested in the event of the action.

In Price v. Price, 33 Hun, 69 , which was an action by the plaintiff to recover the proceeds of bonds which were alleged to have been placed by her in the hands of the defendant’s testator for safe-keeping, and which had been subsequently sold by him, the plaintiff testified that she had $12,000 in bonds in her trunk on or before March 25, 1865; that on the morning of that day five $100 bonds were stolen; that the testator came to her room after the discovery -of the theft, with a detective, who, after examining the room, said to the testator that the theft had not been committed by a professional thief; that, if it had been, he would have taken all the bonds. The plaintiff was then allowed, under the defendant’s objection and exception, to answer the following question: "What *256 did Price [defendant’s testator] say to Bennett [the detective] in your presence?” her answer to which was: “‘No, of course. If it had been, they would' have taken all of them, whereas here is the balance of $12,000 in my pocket.’ He took them out of his pocket and exhibited—took them from the envelope they were in. ‘But,’ he said, ‘they won’t get any more, because I am going to put them into a bank for her,’—meaning me.” She testified that she spoke more than once during the conversation, but that she said nothing while the remarks as to which she had testified were being made. It was held that the testimony was inadmissible under section 829 of the present Code.

In Erwin v. Erwin, (Sup.) 7 N. Y. Supp. 365 , which was an action for specific performance of a paroi agreement of a deceased person to convey land to the plaintiff, the plaintiff’s wife, who was interested in the event of the action, was present when the agreement was made. The conversation was between the decedent and plaintiff. His wife said nothing, as deceased did not like her, and she was afraid that if she spoke he would be angry, and oppose the arrangement. It was; however, held that she was incompetent to testify as.to the conversation or transaction between the decedent and her husband. See, also, Campbell v. Maginn, 53 N. Y. Super. Ct. 514; In re Bartholic’s Will, (Sup.) 12 N. Y. Supp. 640 .

Having thus examined the principal cases in the court of appeals, and the later ones in the other courts of this state, bearing upon the question under consideration, we think they clearly establish the rule that in probate or other cases, where a will, other instrument, or act, is contested on the ground of undue influence, restraint, mental incapacity, or fraud, a person who is interested in the event of an action or proceeding is disqualified to testify to any transaction or communication which occurred in his presence or hearing, although it was not with or addressed to such person, or one in which he participated. It also seems to be established by these cases that upon other issues an interested witness may be permitted to testify to a conversation or transaction between a decedent and a third person in the presence of the witness, provided he was not referred to by the parties to such conversation, and did not participate in it by word, sign, or act; but if there was any such reference or participation, although slight, the witness is incompetent. Applying these rules to this case, it becomes obvious, we think, that the evidence of Sirs. Eighmie was incompetent. The issue in this case was fraud. The witness admits that she talked with the decedent and her husband on the occasions of the conversation or transaction testified to by her, and was referred to in the conversation between them. But she seeks to qualify herself as a witness by testifying that her conversation in no way related to the transaction between them, and that her objections to her husband’s entering into it were made in the absence of the- decedent, and to her husband alone. Yet, when we .read the whole of her evidence bearing upon this question, which was somewhat conflicting and uncertain, and indicates the existence of a strong desire on her part to qualify herself as a witness, we are led irre *257 sistiTbly to the conclusion that she was so far referred to, and participated in the conversation or transaction between her husband and the decedent to such an extent, as to render her evidence incompetent, within the principle of the cases cited, notably the cases of Brague v. Lord, 67 N. Y. 495 ; Price v. Price, 33 Hun, 69 ; and Erwin v. Erwin, (Sup.) 7 N. Y. Supp. 365 . We think the court erred in admitting her evidence, and that for that error the judgment should be reversed.

The plaintiff’s contention that the admission of this evidence was harmless, as there was other evidence sufficient to justify the verdict, cannot be sustained. The evidence given by the witness was material, and bore directly upon the issue between the parties. “It cannot properly be said that material evidence erroneously admitted upon an issue is harmless, unless the testimony preponderates so greatly in favor of the proposition that a verdict against it would be set aside by the court as contrary to the evidence." In re Will of Eysaman, 113 N. Y. 70, 71 , 20 N. E. Rep. 613. It is clear that if we adopt the rule laid down in the case cited it cannot be held that the error of the court in admitting this evidence was harmless. There are other exceptions as to the admission of evidence and the charge of the court, to which our attention is called by the appellant’s brief, but,'as the judgment must be reversed for the reasons already stated, they need not be considered at this time. Judgment and order reversed on the exceptions, and a new trial ordered, with costs to abide the event.

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HARDIN", P. J., concurred. MERWEN", J., concurred in the result.