Nay v. Curley, 113 N. Y., 575.

the litigation, that is, to any fact which does not involve the disclosure of a personal transaction or communication with the deceased, or is not concerning such personal transaction or communication. Every material fact tends, directly or indirectly to prove or disprove the issue to which it relates. But the survivor is not precluded from testifying in his own behalf to a material fact, simply because it may throw light upon and tend to prove or disprove the transaction in issue. The statute closes the lips of the survivor only as to personal dealings between the parties. It does not deprive him of the right to testify to any material fact known to him, not involving the disclosure of a personal transaction with the decedent, although such fact may indirectly prove or disprove a personal transaction upon which the suit is founded. In other words, the testimony of the survivor is not excluded because it bears upon the issue to be decided or because it bears upon a personal transaction which is itself the subject of the inquiry. It is excluded only when it is in effect a disclosure of what has occurred between the witness and the deceased in relation to the subject in controversy. If, in substance, the fact sought to be elicited respects a personal transaction and tends directly to disclose a personal transaction, or the presence or absence of some element in a personal transaction, then the fact is not, we think, an independent one, and the survivor is precluded from testifying to it, unless the way is opened by his examination by the other party. (Tooley v. Bacon, 70 N. Y., 34; Maverick v. Marvel, 90 id., 656; Koehler v. Adler, 78 id., 287; Lerche v. Brasher, 104 N. Y., 157; Clift v. Moses, 112 id., 426.) The examination of the defendant by the plaintiff's, as to the existence of a debt between the witness and the intestate when the check was given, directly bore upon the nature and character of the transaction, and was an indirect method of proving the transaction itself. They thereby made the defendant a competent witness to testify in his own behalf as to the same transaction.

For the error of the trial court in rejecting the evidence of the defendant the judgment should be reversed.

All concur.

Judgment reversed.

Nay v. Curley, 113 N. Y., 575.

NOTE.-In Lewis v. Merritt, 98 N. Y., 206, an action by an executor for conversion of notes belonging to testatrix, plaintiff swore that deceased kept the notes in a trunk in her room and that he saw them there the morning before she died. The notes thereafter were found in possession of the defendant. Defendant claimed that the testatrix gave him the notes two days prior to her death as a gift.-Held, error not to allow him to be asked if he took the notes from any trunk or person."

RUGER, Ch. J. [deciding the case, says]: The excluded evidence did not purport to be admissible, nor was it offered for the purpose of establishing an affirmative defense; but it is claimed to have been competent, as tending to overthrow a fact upon which plaintiff's cause of action solely rested, and which was testified to by the plaintiff alone. While of course it is not competent for a party, when called as a witness in his own behalf against one representing a deceased person, to testify affirmatively as toany transaction or communication had personally with such deceased person, or whether a particular interview between them took place or not, unless his adversary is first examined in reference thereto, or the evidenceof the deceased person given on some former occasion is proved on the trial; yet this does not necessarily and under all circumstances exclude the evidence of the surviving party, when it tends to negate, or affirm, the existence of such transaction or communication. The object and intent of the restriction placed upon the survivor of those engaged in personal dealings and transactions, from giving evidence in relation thereto, will be accomplished, if it is limited to cases which preclude him from giving such evidence when it is offered for the purpose of establishing an affirmative cause of action or defense. It is difficult to lay down any general rule which shall cover all possible transactions, but it is safe to say when a party gives material evidence as to extraneous facts, which may or not involve the negation or affirmation of the existence of a personal transaction or communication with a deceased person, that the adverse party, although precluded from directly proving the existence of such communication or transaction, may give evidence of extraneous facts tending to controvert his adversary's proof, although those facts may also incidentally involve the negation or affirmation of such personal communications.

or transactions.

ざ

Potts v. Mayer, 86 N. Y., 302.

POTTS v. MAYER.

New York Court of Appeals, 1881.

[Reported in 86 N. Y., 302.]

Where the testimony of the deceased party, taken at a former trial, has been introduced in evidence by one party, a witness, otherwise disqualified under § 829, may testify on behalf of the other, in contradiction or correction of the matters testified to by the deceased witness.

etc.

Hyman and Mayer as makers and Kohn as endorser were sued on a note, the defense being that Kohn paid no consideration, After Hyman only was served, trial was had, and he testified in his own behalf. After judgment against him he died. Mayer was then summoned, under Code Pro. § 375, to show cause why he should not be bound by the judgment. On the trial after his answer, his counsel read from the direct examination of Mayer on the first trial, the following: Q. "What did Kohn, the endorser, give you for the note?" A. "Nothing, but I paid for the note to Mr. Mayer."

Plaintiff then read in evidence the cross-examination of the same witness upon the previous trial, wherein he testified that Mayer was indebted to the witness in the amount of the note upon a private account, for which the note was given.

The defendant then called Mayer as a witness to contradict the evidence of Hyman as to the consideration of the note and was asked this question by defendant's counsel: "You have heard the testimony of Mr. Hyman which has been read in relation to his giving you the money for this note ?"

A. "I have."

Q. "Is that correct?"

Objected to as incompetent under the Code, objection sustained, and exception taken.

Benj. F. Carpenter, for defendant.

R. S. Newcombe, for plaintiff.

Judgment was entered for plaintiff upon a verdict.

Potts v. Mayer, 86 N. Y., 302.

The Superior Court at General Term affirmed the judgment, being of opinion that it being conceded that the note had, with Mayer's assent, been executed, indorsed and delivered by Hyman, the proposed testimony was incompetent under N. Y. Code Civ. Pro., § 829. Nor did the testimony come within the saving clause of that section, because Hyman was Mayer's own witness. The exception made by that clause would have applied only if the plaintiff upon the said question of value, had been examined in his own behalf or had read the testimony of Hyman as part of his case.

The Court of Appeals reversed the judgment.

FINCH, J. [after stating the facts]: The offered evidence was within the letter and the spirit of the exception in the Code which permits such evidence to be given where the testimony of the deceased person is given in evidence concerning the same transaction or communication. (Code, § 829.) The obvious intention of the statute is to preserve equality, and prevent unfair advantage. The mouth of the survivor is closed because the other party to the transaction is dead, and to allow the living witness to speak, secure from the contradiction or correction of his adversary, is to give him an advantage manifestly unfair, and dangerous to the truth. Such inequality and injustice does not exist, however, where the deceased party has spoken and his statement of a transaction is put in evidence. In that event, to allow the dead man to speak through his declarations while living, and deny the right of contradiction or correction to the surviving party, would shift the unfair advantage to those representing the deceased party, and it was to obviate such injustice that the exception in the statute was framed. The question is not, as the respondent states it, whether a party can put in evidence the adverse statements of a deceased party, and so open the door to his own version of the same transaction. If that was, in truth, the question, we should be very likely to feel the force of the respondent's argument in favor of excluding the proposed contradiction. But here the plaintiff himself read in his own behalf the cross-examination of the deceased party, showing, what had nowhere else appeared

Potts v. Mayer, 86 N. Y., 302.

in the case, the existence of an indebtedness due from the defendant Mayer to Hyman, and which constituted the agreed consideration of the note. By this proof of the sworn declarations of the deceased, the plaintiff encountered the exception in the Code, and exposed himself to the evidence of the defendant Mayer as to the same transaction. The ruling which excluded the offered proof was, therefore, erroneous.

The judgment should be reversed; new trial granted, costs to abide the event.

All the judges concurred.

Judgment reversed.

In Corning v. Walker, 100 N. Y., 547, an action brought by plaintiff as assignee to recover moneys loaned to defendant by a firm in which Erastus Corning, Sr. (who died before trial), and plaintiff were partners.

The defense was that the moneys were had by the defendant as payment for services and not as loans.

Plaintiff, as a witness in his own behalf, testified that neither he nor the company ever authorized any money to be advanced to defendant by way of payment for services.

Upon a cross-examination by the defendant's counsel, the plaintiff testified that he knew there could have been no arrangement between defendant and Corning, Sr., as to payment for defendant's services, from what Corning, Sr., told witness.

Thereafter defendant on his own behalf offered to prove an arrangement between Corning, Sr., and himself.

This evidence was objected to and excluded as incompetent under section 829 of the Code.-Held, no error.

MILLER, J. [deciding the points, says]: We think the testimony offered was not competent on any such ground. The defendant was not required to examine the witness in order to explain his testimony upon the direct examination, by introducing evidence as to the declarations of Mr. Corning, Sr., and by doing so did not open the door to the introduction of conversations had by him with a deceased person. Even if it may be assumed that this testimony related to the same subject in regard to which the plaintiff had given evidence, it was not given by the plaintiff in his own behalf so as to authorize a contradiction of the same. It was drawn out on a cross-examination by the defendant's counsel, and cannot therefore be considered to have been given on behalf of the plaintiff and for that reason could not properly be contradicted. There is no rule which authorizes a party to contradict evidence given by his adversary, as to a transaction with a deceased person, which he has himself introduced, and the Code does not provide for any such case. The testimony being introduced. by the defendant himself, he was not authorized to contradict it by showing an interview with a deceased party in relation to the same subject.