Morgan v. Foran

Houghton, J.: ' The action is for the conversion of certain moneys claimed to have belonged to plaintiff’s testatrix and which the defendant refused to deliver to- plaintiff on demand. ' Plaintiff as a witness in his own .behalf, testified that he had an interview with the. defendant shortly after the decease of the testatrix,- in which the defendant admitted to - him that she had in her hands certain moneys which were the property of the testatrix,- which she was ready to turn over to him as executor, and that she delivered a part, but refused to turn over the balance, for which this action is brought. The defendant denied that she admitted that the balance which [186] she now has in her hands belonged to the. testatrix, or that she promised to turn it over to the plaintiff as executor. In addition to the denial of such conversation testified to by the plaintiff-the , defendant' was permitted to testify, against the objection and exception of the plaintiff, to transactions'and conversations had by her with .the testatrix at various times prior to lier decease, "tending to show' that the money was given to her by. the testatrix. . The- defendant was not a competent witness in her own. behalf to testify as ■ against the plaintiff executor to transactions and communications between herself and the testatrix for the purpose of establishing a gift to herself.' In defending her title to the money as’a gift she was making a claim adverse to-tile estate■ of testatrix. The language of section 829 of -the Code .of Civil Procedure expressly prohibits her from testifying to personal transactions and communications had by her with the deceased through' which she may have obtained title. That section provides that upon'the trial of an action a party of person interested in the event shall not be .examined as a witness, in his own behalf or interest, against the executor or administrator of a deceased person concerning-a personal transaction or communication between-the witness and the deceased person, unless the executor or administrator shall‘have been examined in his own behalf * or-the testimony'of the deceased person is given in évidence concerhing-the same transaction or communication. Even where the executor has testified to one -transaction,. the door is not open for the defendant to testify to other or different transactions, but -Ire is competent only to testify respecting that particular one. (Rogers v. Rogers, 153 N. Y. 343.) The plaintiff executor did not testify to any communication..with the decedent, but only to a conversation with the defendant herself. Of course she could deny that she had the conversation with the plaintiff to which he testified, but she could not justify lierz retention of the money by her oWn affirmative testimony that-the testatrix had delivered it,to her with words of gift. In doing so she was testifying in her own behalf, and against' the executor of the deceased person from whom she claimed title, and going beyond -a denial of her admission, which denial she could not fortify by detailing, communications had with 'the deceased. (Cole v. Sweet, 187 N. Y. 488.) The respondent does not urge that the objection of the plaintiff [187] was not-sufficiently specific to raise the question of the incompetency of the witness to testify. The objection was that the questions called for “ personal communications, inadmissible under the provisions of Section 829 -of the Code.” Strictly speaking, the objection should have been that the. witness was incompetent to answer the questions, because they-involved personal transactions and communications ' between her and the deceased which were prohibited by that section of the Code. This was the purport of the objections made, and they must have been so understood by the court and counsel, and we think they were sufficient to challenge the competency of the witness. (Russell v. Hitchcock, 105 App. Div. 315.) The testimonyof the defendant was of the most vital character, and, she being incompetent to give it, the judgment and order must be reversed and a new., trial granted, with costs to the appellant to abide the event. ' Pattekson, P. J., McLaughlin and Laughlin, JJ., concurred; Scott, J., dissented. "