
    Stern et al. v. Eisner.
    
      (Supreme Court, General Term, First Department.
    
    January 28, 1889.)
    Witness—Competency—Conversations of Decedent with Third Party.
    Code Civil Proc. N. Y. § 829, rendering a party to an action against a personal representative incompetent to testify as to a personal communication had between the witness and the decedent, does not prohibit a defendant, in an action by executors for money loaned by their testatrix, from testifying that he heard testatrix tell a third person that the sum sued for was a gift, though the remark was part of a general conversation in which defendant participated.
    Bartlett, J., dissenting.
    Appeal from circuit court, Hew York county.
    Action by Joseph Stern, Mark H. Eisner, and Julius H. Eisner, executors, etc., of Elizabeth Eisner, deceased, against Samuel L. Eisner, for money loaned. By direction of the court, a verdict was returned for plaintiffs for $1,268.23, and an allowance and costs, and defendant appeals. The facts are stated in the opinion of the court and the dissenting opinion of Bartlett, J.
    Argued before Van Brent, P. J., and Daniels and Bartlett, JJ.
    <?. P. Avery, for appellant. <?. W. Carr, for respondents.
   Van Brent, P. J.

This action was brought by the plaintiffs, as executors of the will of Elizabeth Eisner, deceased, to recover from the defendant the sum of $1,000, money loaned by the deceased in her life-time to the defendant; such loan being evidenced by the promissory note set up in the complaint. The answer denied any loan or indebtedness. Upon the trial of the action the defendant was examined as a witness on his own behalf, and he was asked whether he had ever been present when his mother, the deceased, was having a conversation with any one else about this claim, and he answered, “Yes.” He was then asked: “State what you heard her say, and to whom; that is, not yourself, but any one beside yourself.” This was objected to as conflicting with the provisions of section 829. The objection was sustained, and exception taken. He was then asked: “What conversation did you hear your mother have with your sister Mary about it?” Objected to on the same grourfd, objection sustained, and exception taken. This seems to have been error. In the case of Lobdell v. Lobdell, 36 N. Y. 333, where a similar question was asked of a party who was testifying, it was expressly held that such question did not come within the language of the section, and that under such circumstances the transaction or communication in question was not between himself and the deceased person, but between the deceased and a third person, and for that reason did not come within the provisions of the section. It is true there is a slight change in the language pf the Code as it existed at the time of .that decision, but there does not seem to have been any change which renders -the reasoning of that case inapplicable to the section of the present Code above referred to. The change of the language seems to have been only another instance of the many which are found in the present Code, where, for some unexplained reason, language well understood, and which had been interpreted by numerous decisions, is altered to satisfy the whim or caprice of the codifier; for no other reasonable ground can be given for making it. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide event.

Daniels, J., concurs.

Bartlett, J.,

(dissenting.) After the exception was taken which has been deemed fatal to the judgment by a majority of the court, the defendant was examined further in regard to the circumstances of the conversation between his mother and sister, and was allowed, under objection, to give a full account of the^interview. This testimony was subsequently stricken out on the plaintiff’s motion, and the defendant duly excepted. The evidence thus taken and stricken out was very important in its bearing upon the question whether the court was right or not in excluding the testimony of the defendant as to the conversation between his mother and sister, and it leaves no doubt in my mind that such testimony was properly excluded. While it is doubtless true that an interested person, who is a mere listener, is not prohibited by section 829 of the Code from testifying to a conversation which he overhears between a decedent and a third person, a party interested in the event cannot testify to such a conversation, if he participates therein. Such is the construction very recently given to this provision of the Code in the case of Holcomb v. Holcomb, 95 N. Y. 316, 326, which was a unanimous decision of the court of appeals, and in which Judge Danforth expressly says: “If the proposed witness has asked a question of the decedent, and it is answered, it is a conversation; if, while the decedent is conversing with a third person, the witness by word or sign participates in it, or is referred to, his evidence of what occurred cannot be received.” If there is anything in the case of Lobdell v. Lobdell, 36 N. Y. 327, in seeming conflict with this view, it must be regarded as limited or overruled by the later decision. In the present case it distinctly appears that the conversation concerning which the defendant was interrogated was a talk in which his mother, his sister, and himself all took part. He says in so many words that it was a general conversation in which he spoke about the annoyance and trouble and work he had had; that his sister said he had done a great deal of work; and his mother then made the remark to her which is relied upon as showing that the money represented by the instrument in suit was intended to be a gift to the defendant. In my opinion, a statement made by the decedent under these circumstances comes both within the letter and spirit of the prohibition prescribed by section 829 of the Code. For these reasons I am unable to concur in the conclusion reached by my associates in this case.  