Brague v. Lord. Cary v. White, 59 N. Y. 336; Dwarris on Stats. 713; 4 Price, 78; Hobart v. Hobart, 62 N. Y. 80). II. Proof of what a deceased witness testified to on a former trial was admissible (Bates v. Lawson, 15 Johns, 539; Osborn v. Bell, 5 Den. 370). III. It has been the constant practice to apportion rewards (Jones v. Phenix Bank, 8 N. Y. 228). IV. Copies of letters were admissible, as they were only collateral (1 Greenl. Ev. § 89; Anthon's Nisi Prius, 41). RAPALLO, J.-[After stating the facts.]-Questions are raised in respect to these conversations which are not free from difficulty; but it is sufficient for the purposes of the present appeal, to pass upon the exceptions taken to the admission of the two conversations above particularly referred to. We think these exceptions were well taken. Advice given by the plaintiff to Mr. Lord was a personal communication and transaction between them within the meaning of section 399, and, connected with the proof that Mr. Lord accepted and acted upon such advice, the evidence was material, and tended to maintain the issue on the part of the plaintiff. Mr. Lord's remark about what he would have to pay his lawyers, turning towards plaintiff, appears to have been addressed to plaintiff, as well as to Mr. Thomas Lord, and may have satisfied the jury that Mr. Lord looked upon plaintiff as his lawyer throughout the transactions, and conceded that he would have to pay him as such. The remark to Mr. Thomas Lord about paying their lawyers, did not of itself amount to much. It derived its significance wholly from the alleged turning towards plaintiff, and thus giving him to understand that he was the party referred to. This, we think, was a personal communication within the intent of section 399. Brague v. Lord. The superior court, at general term, in the opinion there delivered, concede that the admission of this testimony was error, but they hold that it could not have injured the defendants, because there was uncontradicted evidence in the case on which the jury would have been bound as matter of law to find for the plaintiff on the issue as to which the conversations of the deceased related. There was undoubtedly evidence outside of these conversations, which would have justified the jury in finding that some part of the services rendered by the plaintiff were rendered by him as attorney of Mr. Lord, and on his employment. But there was also evidence tending to show that he was looking to the reward, and that the labor which he performed, or a part of it at least, was performed with the view of earning the reward. In his complaint he claims in one count for services rendered, and in the other the same sum as his proportion of the reward. It appears by his letter to Mr. Lord of May 18, 1869, that he undertook a suit against one Lynch for the recovery of some of the stolen bonds, on condition that if he did not succeed, he was to make no charge for his services, and in a subsequent letter relating to the same suit, he proposes to substitute another attorney therein, on payment of his costs, stating that in case of recovery, he would be entitled to the reward, but he prefers giving a substitution. And it also appears that in May, 1867, Mr. Lord paid him $500, for which he gave a receipt, not on account of services, but to be deducted from the first reward to which he might be entitled. The reward was a certain percentage on all bonds recovered. This evidence tends to show that he had the reward in view, and looked to this contingent compensation for part, if not all, of his services, the principal item of which was for advice, consultations, attendance, &c., while the conversation given in evi Brague v. Lord. dence tended to show that Mr. Lord regarded him as his lawyer throughout, and entitled to pay as such. To sustain a verdict where evidence has been erroneously admitted, it must very clearly appear that no injury could possibly have resulted from the error. We cannot see this so clearly as to justify us in upholding the judgment on that ground. Another insuperable difficulty, however, stands in the way of sustaining this judgment. The plaintiff, as before stated, claims in his complaint a portion of the reward, as well as compensation for services. The court at the trial, after having charged the jury that if the plaintiff undertook the services with a view of receiving a part of the reward offered for the recovery of the bonds, and with that intention alone, the defendants would be entitled to the verdict, further added, at the request of the plaintiff's counsel, that, even if the plaintiff stood on the reward alone, yet if the jury found that the bonds were recovered through plaintiff's exertions, he was entitled to recover. The court, had refused to charge, at the request of defendant's counsel, that the plaintiff had failed to show that the return of the bonds, or any of them, was procured through the exertions or instrumentality of the plaintiff, and also that he had failed to show any right to recover any part of the reward. The jury were therefore instructed, in substance, that they might render a verdict for part of the reward. We have carefully examined the testimony, and fail to find any evidence upon which such a verdict could be based. It was shown that the greater portion of the bonds had been recovered; but we do not find in the case a particle of evidence showing that the plaintiff brought about such recovery, or was entitled to any part of the reward. The defendants were entitled to have the jury so instructed, and it was error to submit to the jury to Note on Examination of Witnesses. determine whether the plaintiff had earned any part of the reward. The plaintiff appears to have rendered meritorious services, and it is to be regretted that this litigation should be prolonged, the case appearing to have already been twice tried. But the view we take of the legal questions raised, requires us to reverse the judg ment and order a new trial, costs to abide the event. All the judges concurred, FOLGER, J., in the result. Judgment reversed and new trial granted, costs to abide event. NOTE ON EXAMINATION OF INTERESTED WITNESSES AGAINST REPRESENTATIVES AND SUCCESSORS IN INTEREST OF DECEDENTS AND LUNATICS (Code of Pro. § 399). The laws of the American States generally recognize the sound policy of restraining the admission of the testimony of a party or interested witness, as against the estate of a deceased person or the interest of one succeeding to his right. The ground of the rule is that although parties and interested witnesses are made generally competent, an exception should be made where the adversary in the controversy is deceased. The law admits all parties; but when death silences one, the law will silence the other. The statutes for this purpose are very diverse. Some reach the result by forbidding parties and interested witnesses from testifying where the opposite party is an executor or administrator. Others attempt to define the line with more discrimination. The New York statute in its present form (§ 399 of the Code of Procedure) is perhaps the most successful of these, and instead of applying to a particular class of actions, it is addressed directly to defining the evidence which ought to be excluded, in whatever action. It confines the prohibition to the actual source of danger, viz., the version by an interested person, of his interview with one who can no longer contradict him. To prevent evasion, the statute applies not only to parties on the record and parties having an interest in the result, but to assignors and others through whom a party claims. To prevent unequal application, it does not apply against one side when the other side has gone into the subject of the interview. These are the features of the New York statute. Note on Examination of Witnesses. Construction of the present statute. The chief difficulty in the application of the statute is as to what is testifying "in regard to any personal transaction or communication between such witness, and," &c. To clear up the apparent conflict between some of the cases, and make the present form of it significant, it will be useful to observe the following changes : History of the changes. Previous to the year 1867, the language of the act excluded communications and transactions "had personally" with the deceased. Under this provision it was held that the plaintiff, in an action against executors, was competent to prove the contents of a lost letter. This was not the species of testimony which the act intended to exclude. Williston v. Williston, 41 Barb. 635. In respect to personal interviews, it was at first held, that the fact that the deceased was present at an interview between the witness and a third person, and was silent in respect to the transaction in a matter affecting him or his interest, must be excluded. The silence, equally with the declarations, of the deceased, was held excluded. Fox v. Clark, 61 Barb. 216, note. But the court of appeals in Lobdell v. Lobdell, 36 N. Y. 333, in effect, overruled this construction, and held that communications in presence of the witness, but wholly between the deceased and another, however the latter might be connected with the former, were not excluded; and that the law must be amended if communications in the presence of, but not "had personally" with, the witness or the deceased, were to be excluded. In 1867 the legislature did accordingly interpose and amend the law, omitting the words "had personally," and forbidding a witness to testify to "any transaction or communication between" the witness and a person since deceased, &c. This provision was, of course, found too broad under it the courts were obliged to exclude the testimony of a witness to letters which passed between them. Ressigue v. Mason, 58 Barb. 89. Accordingly, in 1869 the law was again amended by changing the prohibition to "any personal transaction or communication," so that it now stands as follows: "No party to any action or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party or interested person derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person, at the time of such examination deceased, insane or lunatic, against the executor, administrator, heir at law, next of kin, assignee,. legatee, devisee or survivor of such deceased person, or the assignee, |