Campbell v. Akarman

The opinion of the court was delivered by Mus then, J. The suit was brought to recover a balance due upon a contract for services performed by the plaintiff for Mrs. Annoria Pall, the defendant’s intestate. The trial resulted in a verdict for the plaintiff. Ten assignments of error have been filed by defendant’s counsel upon exceptions taken during the progress of the trial. For the determination of the review before ns it is necessary only to consider the validity of those exceptions that are directed to the trial court’s ruling -upon questions intended to elicit information concerning transactions between the plaintiff and the deceased. The executor had not testified, or offered himself as a witness to testify, to any such transactions, so as to pave the way for any testimony upon the subject by fhe plaintiff within the exception prescribed to "the general rule excluding such testimony by our statute. Pamph. L. 1900, p. 363; Comp. Stal., p. 2218. In this posture of the proof, after detailing his relations with the deceased, the plaintiff, upon direct examination, was asked and allowed to answer, over objection and exception [568] by defendant’s counsel to their legality under the statutory prohibition, the following, among other questions of similar import: “Q. Were you paid for your services? “Q. Were you paid anywhere else any amount of money? “Q. Go ahead and tell us how much, you were paid?” The following receipt, signed by the plaintiff, was produced and shown to the plaintiff: “Received from Mrs. A. A. Pall, from July 3d to November 14th, 1908, in full $195.” And she was then asked: “Q. Did you ever receive anjr other moneys? “Q. Did you receive any other moneys than the $195 there in that receipt? “Q. Did that pay in full?” We entertain no doubt whatever as to the purpose of these and other inquiries of a like nature contained in the record. That the object in thus framing them was to evade the statutory provision prohibiting the giving of testimony by a party to the action “as to any transaction with or statement by any testator or intestate, represented in said action” seems to us manifest. This statutory provision has been under consideration by this court upon several occasions, and its meaning and 'the declared purpose of the legislature in enacting it have been defined and settled in several eases. In the comparatively recent adjudication of Van Waganen v. Bonnot, 4 Buch. 843, this court, speaking by Mr. Justice Parker, said: “The test laid down in our decisions in ascertaining what is a Transaction with’ the deceased about which .the other party to it cannot testify, is to inquire whether in case the witness testified falsely the deceased, if living/ could contradict it of his own knowledge.” That the questions here under consideration if subjected to tha t test would fall under the prohibition of the act, to us seems indubitable, and the judgment below, for that reason, must be reversed, and a venire de novo issue. [569] For affirmance — Aione. For reversal — The Chief Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Yoorhees, Minturn, Kaliscii, Bogert, Yredbnburgh, Yroom, Congdon, White, Treacy, J'J. 15.