
    Sallade v. Gerlach et al.
    
    
      (Supreme Court, General Term, Fifth Department.
    
    October 19, 1889.)
    Witness—Competenot—Transactions with Decedent.
    Although a question does not appear to be obnoxious to Code Civil Proc. H. Y. § 839, providing that a party shall not be examined as to transactions had with a decedent, yet it is properly excluded when a previous answer to substantially the same question is incompetent.
    Appeal from circuit court, Erie county.
    Action by Jacob Sallade against Charles A. Gerlach, T. S. Philips, and P. Herdie. Defendant Gerlach appeals from a judgment entered on a verdict directed by the court, and also from an order denying his motion for a new trial.
    Argued before Barker, P. J., and Dwight and Macomber, JJ.
    
      Hamilton B. Squeir, for appellant. George F. Wardwell, for respondent.
   Macomber, J.

The complaint is upon a promissory note in the sum of SI, 250, which was executed by the defendant T. S. Philips, and indorsed by the defendants Charles A. Gerlach and P. Herdie, bearing date December 20, 1881, at Buffalo, payable to the order of Gerlach four months thereafter. Under the pleadings the plaintiff had not devolved upon him any duty of producing evidence, because the fact of the making, execution and the transfer of the note, as alleged in the complaint, was admitted. The only question in the case is whether or not sufficient evidence was given or offered which would shift to the plaintiff the burden of showing, in addition to the presumptions of law, the fact that he was a bona fide holder tor value before maturity of this piece of commercial paper. The appellant, who is the only one of the defendants who defended the action, takes this appeal upon certain alleged erroneous rulings by the judge at the circuit. Under appropriate allegations in the answer, an effort was made at the trial to show that the appellant was merely an accommodation indorser for the benefit of Peter Herdic. This attempt was made by means of the testimony of the appellant himself, and questions were propounded to him which clearly called for testimony relating to personal transactions between the witness and Peter Herdie. But Peter Herdie was, at the time of the trial, dead. An objection was made to such testimony, under section 829 of the Code of Civil Procedure, which was sustained, and exception taken. This decision is fully warranted by authority of the case of Benedict v. Driggs, 34 Hun, 94, where a like proposition and ruling were made.

Much stress is also laid upon the ruling of the court upon the following proceedings, which were had: The appellant’s counsel asked his client the following question: “How, how did it happen that that note was made payable to your order?” This was objected "to, and the court said: “That involves his telling what was said on that occasion, does it not?” The witness replied: “Ho, sir; it does not.” It is argued, with some ingenuity, that this ruling was erroneous; because the response to the question might not have been incompetent, under section 829 of the Code. The general rule undoubtedly is, that, when the question necessarily calls for personal transaction or communication of the party with a deceased person, its rejection is required under this section; but that, when the question does not appear to be obnoxious to this provision, the party is required to wait until the answer itself discloses the fact whether or not it is inimical to this rule of evidence. Denise v. Denise, 110 N. Y. 567, 18 N. E. Rep. 368. In this instance, however, the question necessarily called for incompetent evidence. By the earlier proceedings in the case it is found that substantially the same question was put to the witness, and an answer elicited. The same witness said, in the earlier part of his examination: “When those notes were drawn they were made payable to my order, at the suggestion of Mr. Herdic. Herdic was present then and there.” This was a sufficient reason for the existence of the note in the form in which it appears in the case. Though incompetent under this section of the Code, it stands in the case. What more could have been shown under the question put to the appellant is not apparent from any of the circumstances attending the trial. It follows, therefore, that the judgment or order should be affirmed. All concur.  