
    Christian Ehmann, App’lt, v. Helena Scheuerman, as Executrix, etc., et al., Resp’ts.
    
      (New York Court of Common Pleas, General Term,
    
    
      Filed February 6, 1888.)
    
    1. Evidence—Competency op witnesses—Code Civ. Pro., § 829—Testi-mony OP CO-DEPENDANT.
    Ujion the trial of an action against an administrator, a defendant is not prohibited by Code Civ. Pro., § 829, from giving testimony in the behalf or interest of his co-defendant, concerning a personal transaction or communication with the deceased unless interested in the event.
    3. Same—Code Civ. Pbo., § 829—Disqualifying interest.
    The test of interest of the witness is that he will either lose or gain 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, and the interest must be certain and vested and not remote or contingent.
    Appeal from a judgment in favor of defendant Scheuerman, entered on the verdict of a jury.
    
      Thomas Bracken, for app’lt; John S. Gaber, for resp’ts.
   Bookstaver, J.

This action was brought on a promissory note made by Frederick Ott and endorsed by Philip Scheuerman, as surety, and delivered to Charles S. Ehmann, the payee, for value. The plaintiff claimed to be the owner of the note, by purchase from his brother Charles.

The latter fact was denied by the defendant Scheuerman, who appeared. Ott, the maker of the note, was never served with the summons and did not appear as a party.. Defendant Scheuerman also set up as defenses payment by Ott, and a release of himself as surety, by reason of a certain chattel mortgage given by the maker and received, by the payee as security for the note.

The payee of the note died before this action was brought. Philip Scheuerman, the surety, died before trial, and the action was revived against his executrix.

On the trial a chattel mortgage was produced, executed by Ott, the maker of the note, to Bhmann, the payee therein. There were what was claimed to be misdescriptions of the note in the mortgage; and Ott was called by the defendant to prove that the mortgage was given to secure the note in suit; and also that he had paid the mortgage by work done for the payee in his life-time.

This testimony was objected to by plaintiff on the ground that it related to personal transactions between the witness, and a deceased person, and was incompetent under section ■ 829 of the Code, whether he testified in his own behalf or on behalf of a co-defendant.

On the argument appellant’s counsel insisted that Alexander v. Dutcher (70 N. Y., 385) was conclusive on this question, and that case does lay down the rule here contended for, but that decision was rendered under section 399 of the old Code. That section provided that “No party to an action or proceeding, interested in the event * * * shall be examined as a witness in regard to any personal transaction,” etc., against the executor, etc., and justified the decision.

But the court after declaring that section 399 (Old Code), made no distinction between cases where parties were called as witnesses on their own behalf, or in behalf of a co-defendant, or cases where they were jointly or severally liable, says; “ It might have been reasonable to make such distinctions.” And the legislature has made a distinction as far as co-defendants are concerned, in the Code, which provides (§ 829) that such person shall not be examined as a witness “ in his own behalf or interest, or in behalf of the party succeeding to his title or interest against the executor,” etc.

In this case Ott, although named as a defendant was never served with the summons, and did not appear in the action. He was therefore no party to the actions. Neither was' he examined as a witness on his own behalf, and his testimony was competent we think, in behalf of the ■ defendant, Scheuerman, under the Code, as it stands, unless rendered incompetent by reason of his interest in the event of the action.

He is not a party to it. No judgment can be recovered against him in it.

The note became due in 1874, and” no action can now be maintained by the plaintiff or any transferrer from him, against Ott, on the note.

The test of interest of a witness is that he will either lose 01 gain 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., 282

Such interest must be present certain and vested, and not remote or contingent. Moore v. Oviatt, 35 Hun, 216; Hobart v. Hobart, 62 N. Y., 80.

Measured by these rules, the witness had no interest in the event of the action, and the testimony objected to was ■competent.

The bill for work done by Ott, for the payee of the note, was objected to, only on the ground that it was incompetent under the same section of the Code, and as that is untenable, no error was committed in admitting it in evidence.

_ The exceptions to the refusal to direct a verdict for plaintiff, and to the charge, and the refusals to charge being based upon the incompetency of the testimony, before referred to, fall with the exceptions to that testimony.

_ During the progress of the trial a witness for the plaintiff testified to certain conversations with Philip Scheuerman. the surety on the note, which the witness said occurred before the commencement of this action.

The answer was introduced in evidence, apparently for the purpose of contradicting this statement. We think it was competent to show by the answer that, at the time the conversations were said to have taken place, the action was at issue, and that no error was committed in admitting it for that purpose.

The judgment should therefore be affirmed.

Larremore Ch. J., and Daly, J., concur.  