Gerdy v. Tissot

LEHMAN, J. For the purpose of qualifying the witness to testify as to decedent’s signature, she was asked the preliminary question,. “Did you see her at any time sign' her name, other than in a personal transaction between you and" she?” Under' the authority of Wilber v. Gillespie, 127 App. Div. 604, 112 N. Y. Supp. 20, this question was-objectionable, under section 829 of the Code. Most of the authorities relied on by the plaintiff are considered and distinguished in that case. It. is true that this question expressly excludes “personal transactions” ; but it is obvious that the court, and not the witness,, must determine as to what is a personal transaction, and since, under the authority of the case cited above, the conduct of the decedent of that case in writing her name in the witness’ presence a sufficient number of times to produce an impression or information sufficient to-qualify the witness to express an opinion must be held to constitute a personal transaction, this evidence cannot be made admissible by the form of the question. - Judgment should be reversed, and a new trial ordered, with costs; to appellant to abide the event. All concur.