privileges extended, he held out to them the inducement that he would at some time will to them the premises. He promised that, at some future day after they had taken possession, he would execute the necessary papers. The appellants accepted his proposition, acted upon it, and boarded him from December until the next summer, when he left them, without fault shown on their part, and, so far as he was able, he attempted to withdraw from his agreement. Whatever else may be said of such an agreement, it is plain that it is not one of leasing premises. It is rather one to provide the petitioner with board and the comforts of a home with his kindred. No such thing as rent was spoken of, nor was it within the intention of the parties. The tenure of these appellants, so far as it was defined at all, seemed to be one which would by and by ripen into a fee.

It is true that the county judge holds that the inducement held out by the petitioner that he would some time will them the property had no effect in inducing them to come. The learned county judge has here lapsed, through an inadvertence unusual with him, into a repugnancy in terms. The inducement is found; it is clearly established by the evidence. It is obvious that it was regarded as one of the most important benefits to be secured by the agreement. It cannot be nullified by the finding that the inducement, which was acted upon, did not induce. It is not needful that we should undertake to define the precise rights and duties of the parties. The remedy here sought is given by statute for the special case of landlord and tenant. The petitioner has mistaken his remedy, if he has any.

The

The order should be reversed, with costs, as in a special proceeding. Code, § 2263, provides that, upon reversal, the court may award restitution; also that the party dispossessed may maintain an action for damages. We think, under the circumstances, we ought to leave the appellants to their action for damages.

LEARNED, P. J., and INGALLS, J., concur.

(49 Hun, 340)

EISENLORD v. EISENLORD et al.

(Supreme Court, General Term, Third Department. July 2, 1888.) WITNESS-COMPETENCY-TRANSACTIONS WITH DECedents.

Where plaintiff claims certain land as the son and only heir of the deceased owner, his mother is not a competent witness to prove her marriage with deceased under Code Proc. N. Y. § 829, providing that one interested in the event of a suit shall not be examined, in his own behalf or interest, against one deriving title from a deceased person, concerning a personal transaction between the witness and the deceased, as, in the event of recovery, she would be entitled to dower.1

Appeal from circuit court, Fulton county.

The action was ejectment, by John P. Eisenlord, to recover lands in Fulton county of which Peter O. Eisenlord died seized and intestate. The plaintiff claimed to be his legitimate son and only heir at law. He is the son of Margaret Lipe, and was born October 21, 1857. Peter O. Eisenlord was a physician at Palatine, Montgomery county. He died June 30, 1885, never having lived with Margaret Lipe as her husband. The defendants are his heirs if the plaintiff is not. The claim of the plaintiff rests upon the truth of the allegation that in June, 1857, Dr. Eisenlord and Margaret Lipe were secretly married at St. Johnsville by a justice of the peace named Mosher. The testimony of Margaret Lipe is to the effect that she was then pregnant with plaintiff by her previous illicit connection with Dr. Eisenlord; that the doctor asked her to go to Mosher's there to be married; that they did go, and the ceremony

As to the competency of witnesses to prove transactions with deceased persons, see Hillman v. Schwenk, (Mich.) 36 N. W. Rep. 670, and note; Topping v. Windley, (N. C.) 5 S. E. Rep. 14; Crimmins v. Crimmins, (N. J.) 10 Atl. Rep. 800.

was performed,-no witnesses being present; that he then went his way, and she hers, and they never came together again. It appeared that they never recognized each other as husband and wife; that the plaintiff was baptized as her illegitimate son; that she never claimed to be the wife of Dr. Eisenlord in his life-time; that she married one Austin in 1872; that her father recovered $1,000 of Dr. Eisenlord in an action against him for seduction. Lipe v. Eisenlerd, 32 N. Y. 229. The justice testified that he performed a marriage ceremony at St. Johnsville in June, 1857, in which Dr. Eisenlord was one party, and a person whom he introduced as Margaret Lipe was another; that he made no record of it, and never mentioned it in Dr. Eisenlord's life-time. The other testimony consisted chiefly of the alleged declarations of Dr. Eisenlord, some tending to show that he was married and had a son; others that he regarded the claim made by Margaret, that he was the father of the plaintiff, as a great outrage. Judgment for plaintiff, and defendants appeal.

A. J. Abbott, for plaintiff. Geo. W. Smith, for defendants.

LANDON, J. We think it was error for the court to allow the plaintiff to examine Margaret Austin, his mother, as a witness in his behalf, on the trial, touching the alleged marriage of herself with Dr. Eisenlord, and what took place between them immediately preceding and following the alleged marriage. Section 829 of the Code of Procedure declares that, "upon the trial of an action, * a person interested in the event * shall not be examined as a witness, in his own behalf or interest, * ** * against a person deriving his title or interest from, through, or under a deceased person, * concerning a personal transaction or communication between the witness and the deceased person."

* *

*

*

*

1. Margaret Austin was interested in the event of this action. The rule laid down by the elementary writers, (1 Greenl. Ev. § 390,) and approved in Hobart v. Hobart, 62 N. Y. 82, is: "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." Miller v. Montgomery, 78 N. Y. 285. The judgment in favor of the plaintiff would furnish her with important evidence to establish her claim to dower in the premises described in the complaint. Upon this plaintiff's recovery, suppose Margaret brings her action against him to recover her dower. This judgment roll would show against the plaintiff, claiming under it and accepting its terms, that Dr. Eisenlord died seized of the premises, leaving, as the complaint alleges, this plaintiff his "lawful descendant, son, and sole heir at law of the said Peter O. Eisenlord, deceased, and as such heir at law entitled in fee to the immediate possession thereof." Evidence aliunde would be competent to show that upon this trial, and essential to his recovery, he alleged and established the facts that Margaret Austin was his mother; that, prior to his birth, she and Dr. Eisenlord were lawfully married. It is not essential that she should be a party to the present action. It is nevertheless evidence in her behalf, against him, that he, in order to obtain title to the land, solemnly declared, and procured the truth of the declaration to be judicially established, that all the conditions upon which Margaret's right to dower depend were absolutely true in fact. It is not received as a judgment, but as his declaration. 1 Greenl. Ev. § 527a; Cook v. Barr, 44 N. Y. 156. It is impossible to see how this plaintiff, either in law or fact, could gainsay the truth of his solemn declaration.

2. Margaret Austin, being thus interested in the event, was examined touching the very matter upon which her interest depended. Her testimony, which tended to establish the plaintiff's title to the land, tended just as completely to establish her own.

3. She testified against the defendants, whose title, whatever it was, was derived through Dr. Eisenlord, and not otherwise.

4. Her testimony was concerning the personal transactions and communications between Dr. Eisenlord and herself. The authorities are to the same effect. Sanford v. Ellithorp, 95 N. Y. 48; Steele v. Ward, 30 Hun, 555; Miller v. Montgomery, supra. For this error the judgment should be reversed, and a new trial granted, costs to abide the event. We think, also, the order for a new trial should have been granted upon the facts. We concur in the view taken by Mr. Justice FISH in the case next reported. (Eisenlord v. Clum, infra.)

(49 Hun, 343)

EISENLORD v. CLUM et al.

(Supreme Court, General Term, Third Department. July 2, 1888.) NEW TRIAL-WHEN GRANTed-SufficieNCY OF EVIDENCE.

Where plaintiff sues to recover certain land as the legitimate son and only heir of one deceased, and introduces the record of an action by his mother's father, four months after his birth, against deceased, for seduction, in which his mother testified she was not married, and in which judgment was rendered for plaintiff, the court properly set aside a verdict for plaintiff.

Appeal from circuit court, Montgomery county; FISH, Justice.

This was an action of ejectment by John P. Eisenlord for lands of which Dr. Peter O. Eisenlord died seized. The lands were situate in Montgomery county. The jury rendered a verdict in favor of the plaintiff. Thereupon a motion was made by the defendants upon the minutes, at the same circuit, to set aside the verdict and grant a new trial. Mr. Justice FISH, who presided, granted the motion, upon the ground, as stated by him in his opinion, "that the verdict is not sustained by the evidence, but is contrary to and against the evidence." The evidence in this case was substantially a repetition of that which was given in the previous case in Fulton county, (Eisenlord v. Eisenlord, ante, 123.) In this case, however, the plaintiff was permitted to read in evidence the judgment roll in the seduction case of Lipe v. Eisenlerd. From the order granting a new trial plaintiff appeals.

Argued before LEARNED, P. J., and LANDON and INGALLS, JJ.
A. J. Abbott, for plaintiff. George W. Smith, for defendants.

LANDON, J. The learned trial judge set aside the verdict and granted a new trial, upon the ground that the verdict was against the clear weight of the evidence; that is, "contrary to the evidence. Code Civil Proc. § 999. The testimony, in his opinion, does not show that Dr. Eisenlord and Margaret Lipe were married in June, 1857, by Justice Mosher. We have read the testimony; and without the aids which the trial court had of witnessing the trial, and receiving those impressions respecting the truthfulness and reliability of witnesses which come from personal observation, we cannot resist the impression that the strong probabilities are that the story of the secret marriage is not reliable. In addition to the error which we have pointed out in the Fulton county case, and which was repeated in this, we observe that in this case the judgment record in the case of Lipe v. Eisenlerd was, upon the offer of the plaintiff, received in evidence. It is true that, at the close of the testimony, the plaintiff's counsel asked leave to withdraw the judgment record, but the leave was not granted. The judgment record was not formally read to the jury, but the fact of its existence, and the character of the issue determined by it, were fully disclosed. It was shown that, upon that trial, Margaret testified that she was unmarried; that Dr. Eisenlord was her seducer. It was also shown that Dr. Eisenlord lay in jail for some time upon the execution issued upon the judgment, and that a portion of its proceeds were paid to Margaret. Reference to the report of that case in 32 N. Y. 229, will indicate its character. It was commenced after the birth of this plaintiff, by the father of Margaret, against Dr. Eisenlord, to recover damages caused by his alleged seduction of Margaret. If the verdict given in this case is true, then

Margaret and Dr. Eisenlord had been married four months before the plaintiff was born. That action rested upon the quasi fiction, which the law favors in order to bring to justice the violator of social order and the destroyer of the peace and honor of the family relation. When the alleged seducer atones for his offense, and repairs it by marrying his victim, the law no longer tolerates the fiction upon which the parent's action rests, but, in obedience to the obvious demands of the best public policy, ignores and suppresses it. It bids the offended parent to be still, out of regard to the best interests of his child, and of domestic and social relations generally. If he has any cause of action, it is against the husband for the support of his wife and child. Suppose Margaret's father had brought the latter action against Eisenlord, and had recovered. Is it to be doubted that it would practically have settled the question of marriage forever? Why? Because Dr. Eisenlord would then have had his day in court, in which he could have raised and have had that question decided. His status respecting Margaret would have been decided, His status respecting Margaret would have determined his status respecting their child, this plaintiff. By the common law, the condition of the child follows that of its father. If the father is married to the child's mother before the birth of the child, the child is presumed to be the legitimate child of the husband. If born out of wedlock, the child is filius nullius, and cannot even inherit from its mother, unless the statute so declares. Hence, the status of the father with respect to the mother being ascertained, that of the child is inevitably determined. Our statutes enable the husband, in an action for divorce against his wife upon the ground of her alleged adultery, to question the legitimacy of the child born after the alleged adultery, and to have it determined as one of the issues in the action. Code Civil Proc. § 1760; 2 Rev. St. Marg. p. 145, § 44. Such decrees have been made. Cross v. Cross, 3 Paige, 139; Van Aernam v. Van Aernam, 1 Barb. Ch. 376. Rule 76 regulates the practice. The child has nothing to say upon such an issue. comes into the world doomed to abide the status fixed for him by his parents, so far as his legitimacy is concerned. The plaintiff, by introducing this judgment roll, proved the status of his father with respect to his mother months after he was born, and therefore at the time of his birth. He proved that the connection between them was meretricious. It is true that his mother was not a party to that action, but it was not needful that she should be. The plaintiff abides the condition of his father. We need not, however, now hold that this judgment record is conclusive in regard to the status of Dr. Eisenlord. That it is competent evidence against this plaintiff of a very high kind we do not doubt. Dr. Eisenlord had his day in court, respecting the matter, under such a pressure of interest as does not permit us to doubt that the truth, if it was as it is now claimed to be, would have been disclosed. We therefore the more readily concur in the order made by the trial court setting aside the verdict and granting a new trial. Order affirmed, with costs of this appeal.

He

LEARNED, P. J., (concurring.) I concur in the opinion in the first case, and in the result in the second case I see no reason to disagree with the conclusion of the learned justice who set aside the verdict and granted a new trial. The plaintiff, after giving in evidence the judgment in Lipe v. Eisenlerd, asked leave to withdraw it, and it was not read. Whether it would be evidence against him if offered by defendants in another trial I am not willing to say.

INGALLS, J., (concurring.) I concur in the result reached by my Brother LANDON in both appeals.

(49 Hun, 356)

CITY OF ALBANY v. MCNAMARA.

(Supreme Court, General Term, Third Department. July 2, 1888.) Office and Officer-ACTS OF PUBLIC OFFICERS-PRESUMPTION.

Defendant's decedent was admitted to a hospital on an order of the overseer of the poor; the rules of the hospital requiring an application for that purpose to be signed by the patient or his physician. No written application was produced at the trial, and the overseer was dead at that time. Held, that it will be presumed that the public officer did his duty, and that the deceased made the necessary application, and the plaintiff city can recover money paid for the treatment of deceased from her estate, as paid for her use and at her request. LANDON, J., dissenting.

Appeal from judgment on report of referee.

The city of Albany sued John W. McNamara, executor of Mary E. Payne, deceased, to recover money paid for her treatment in the Homeopathic Hospital. Judgment for plaintiff, and defendant appeals.

Argued before LEARNED, P. J., and LANDON and INGALLS, JJ.
James F. Tracy, for appellant. J. A. Delehanty, for respondent.

INGALLS, J. The plaintiff presented to the defendant, as executor of the last will and testament of Mary E. Payne, deceased, a claim against her estate which was rejected, and finally referred under the statute which provides for the settlement of claims against the estates of deceased persons. The cause was tried before the referee, who reported in favor of the plaintiff, and his report was confirmed by the special term, and judgment was entered in favor of the plaintiff against the defendant; and this appeal is brought by the defendant from such judgment and order. The principal question involved is whether, upon the facts, in regard to which there seems to be little dispute, the law establishes a cause of action in favor of the plaintiff against the estate, of the deceased. Mary E. Payne, the testatrix, was received for treatment into the Homeopathic Hospital at Albany, under the following order of Richard Parr, an overseer of the poor of said city: "No. 16. ALBANY, August 7, 1883. The superintendent of the Homeopathic Hospital is directed to admit Mary E. Payne into the hospital, there to be taken care of and provided for according to the rules and regulations of the said institution. RICHARD PARR, Overseer of the Poor. This order is only for the time specified." She was not placed in the charity ward, but occupied a room in the upper part of the building. Jacob H. Ten Eyck, a witness produced by the defendant, testified as follows upon his cross-examination. "Question. Did you know Mary E. Payne? Answer. I did. Q. How long did you know her? A. She was in the hospital when I became treasurer, in 1884. Q. You became acquainted with her subsequently to that period? A. While I was treasurer. Q. Was she in the general ward of the hospital, or was she in a private room? A. She was in a private room. Q. Have you any fixed price for patients in the hospital who occupy the wards? A. In the charity ward they pay four dollars a week from the city. If a patient comes in that is poor, isn't able to pay herself, don't come with a permit, and is willing to go in the charity ward, we get five dollars a week. Q. Patients who are received in the hospital under permits issued by the overseer of the poor of the city of Albany are placed where? A. In the charity ward. Redirect-Examination. Q. The room Mary E. Payne was in at the time of her death, and had been for some time previous to her death, was in a room on the top floor, next to the roof? A. Yes, sir. Q. Slanting roof? A. Yes, sir. Q. What, in ordinary houses, would be denominated the garret? A. An attic-room, -a good-sized room. RecrossExamination. Q. The price for a room is greater than the price charged for a patient in a charity ward? A. Yes. We have had as high as ten dollars & week, in that same room, for a pay patient. Redirect-Examination. Q. Sometimes this charitable institution does charity? A. Yes, sir. Q. In other