Carpenter v. Romer & Tremper Steamboat Co.

Herrick, J.: The principal question of law arising upon this appeal is as to the admissibility in evidence of the conversation between the witness Coykendall and Edwin Young. . Objection is made to its admission under section 829 of the Code of Civil Procedure. That portion of the -section applicable to this question reads as follows: “ Upon the trial of an action, or the hearing upon the [368] merits of a special proceeding, a party or person interested in the event * * * shall not be examined as a witness in his own behalf or interest, or in behalf of the; party succeeding to his title or interest against * * * a person deriving his title or interest from, through or under a deceased jierson or lunatic, by assignment or otherwise; concerning a personal transaction or communication between the witness and the déceased person or lunatic.” This is substantially a re-enactment of section 399 of the old Code of Procedure. The reason and object of this rule of ' evidence is “ that where death has closed the lips of one party to á personal transaction or communication between him and another, which the deceased could obviously contradict or explain were he living, the other shall not be a witness to prove such transaction or communication in an action against the representatives of the deceased. The evidence in such a case to be excluded may be that concerning a personal transaction between the witness and the deceased, or that concerning a communication between them. In either case the survivor is not to be heard, because the dead person cannot be.” (Price v. Price, 33 Hun, 69, 72; Card v. Card, 39 N. Y. 317, 323.) The transaction out of which the issue in this case arises was one between Samuel D. Coykendall and Edwin Young, and Edwin Young is dead ; and it must be obvious, it seems to me, that to permit Coykendall to give his version of what took place between them in relation to that transaction is to violate the spirit of that rule: Is Coykendall a person interested in the eve.nf, within the meaning of section 829 ? “ The true test of the interest of a witness is, that he will either gain or lose by the direct legal operation and effect of the judgment or that the record will be legal evidence for or against him in some other action.” (Hobart v. Hobart, 62 N. Y. 80; Wallace v. Straus, 113 id. 238.) The result of this action will determine whether the defendant shall pay $1,500 yearly to the estate of Tímidas Cornell and $1,500 yearly to the witness Coykendall, or whether it shall pay the whole sum of $3,000 yearly to the estate of Cornell to the exclusion of Coykendall. [369] Furthermore, the judgment will be legal evidence for or against Coykendall. For it appeal's that the moneys claimed by the executor of the Cornell estate to be payable to such estate, and for which this action is brought,, have been paid by the defendant Coykendall, and that he has indemnified the defendant Against any loss by so doing, so that if the defendant is compelled to pay the Cornell estate, Coykendall will be responsible over to the defendant. Where a third person is responsible over to the defendant in an action, and is duly notified of the pendency of the suit, the judgment therein, if rendered without fraud or collusion, will be conclusive against him. It is not essential that he be requested to assume the defense. (Heiser v. Hatch, 86 N. Y. 614.) It does not appear in this case whether any formal notice of the pendency of this action and request to defend it was ever given by the defendant to Coykendall. Neither was it necessary that such notice or request should be given or made. He had actual notice. He appeared as a witness in the case, and one of the learned counsel who appeared for the defendant stated in open court that he really represented Mr. Coykendall, although in form representing the Romer & Tremper Steamboat Company; that Mr. Coykendall had indemnified the Romer & Tremper Steamboat Company against any loss by suit at the instigation or instance of the Cornell estate, and that he was in the position of the real defendant. So it appears not only that he had actual notice of the pendency of the action, but in reality was defending it. “ In all cases where one stands in the position of indemnitor to others who are also immediately liable to a third party, his liability may be fixed and determined in the action brought against his indemnitee by notice of the pendency of such action, and an opportunity afforded him to defend it. * * * In such case it has been held that it is unnecessary that he should have notice in writing, or even express notice, but that notice may be implied from his knowledge of the pendency of the action and his participation in its ■defense.” . ( Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550.) “ No particular form of words is necessary in order to constitute notice in such cases, nor is it even necessary to give a written notice. [370] It is sufficient that the» party against whom ultimate liability is claimed is fully and fairly informed of the claim, and that the action is pending with full opportunity to defend or to participate in the defense. ' If he then neglects or refuses to make any defense he may have, the judgment will bind him in the same way and to the same extent as if he had been made a party to the record.” (Oceanic Steam Navigation Compay v. C. T. E., 144 N. Y. 663; Carleton v. Lombard, Ayres & Co., 149 id. 137, 151; Washington Gas Co. v. Dist. of Columbia, 161 U. S. 316, 330.) It seems to me, therefore, very clear that Coyken'dall was a person interested in the event,» within the meaning of section 829. The plaintiff, the executor and trustee of the Cornell estate, is a person who derived his interest from, through or under the deceased person. By the use of the words against “ a person deriving his title or interest from, through or under a deceased person * * * by" assignment or otherwise,” it was intended to protect all persons succeeding to' the right, title or interest, or standing in the place or stead of the deceased person, against testimony as to communications made by him to the adverse party. The words “ or otherwise ” were intended to embrace and cover every and all means' and manner of succession or devolution, in addition to that by assignment. The plaintiff in this action is the successor in office to a deceased executor, and has succeeded to the right, title and interest of everything that he acquired as executor and trustee during his lifetime.. While the office of Horace G. Young, as executor and trustee, was not, perhaps, derived from, through or under Edwin Young, but from the will of Thomas Cornell, yet the cause of action here arose out of and from the act of Edwin Young as executor, and was derived from his action, so that the title of the plaintiff to and his. interest in the "subject-matter of the action may properly be said to have been derived from, through or under Edwin Young, deceased. The testimony received was, therefore, I think, clearly within the spirit and letter of the rule prohibiting the reception in evidence of communications with a person since deceased, -and should have been excluded. It was material evidence, and must have had its influ [371] ence upon the trial, and for the error in its reception the judgment should be reversed.' Judgment reversed upon questions of law only, referee discharged " and a new trial granted, costs to abide the event. All concurred; Parker, P. J., in result. Judgment reversed, referee discharged and a new trial granted, with costs to the appellant to abide the event.