
    Mary A. McMurray, Adm’rx, Resp’t, v. Teresa Ennis, App’lt.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed May 25, 1891.)
    
    Evidence—Code Crv. Peo., § 829—Waiver.
    In an action by an administrator to recover moneys paid after the death of Ms intestate to the latter’s daughter on checks drawn by him, a question put to the defendant as to whether her father ever promised to repay certain money to her is inadmissible under § 829 of the Code, and the plaintiff’s .right to object thereto is not waived by failing to object to her testimony that her father owed her such money.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial on the minutes, on the exceptions taken, and on the ground that the verdict was contrary to the evidence and contrary to law.
    Action to recover moneys paid to defendant after the death of plaintiff’s intestate on checks drawn by him in favor of defendant, who was his daughter.
    Defendant was called as a witness by plaintiff, and testified that she received the checks about two weeks before her father’s death, and further stated that she did not know the checks were in existence till she got them, and that she gave her father nothing for the checks, and had never asked him for them. On cross-examination by her counsel, she testified that at the time the checks were delivered to her her father owed her $2,500. Plaintiff then examined her as to the transaction out of which this debt arose, and she was then asked by her counsel: “ Did your father ever promise to repay that money to you ?” This was objected to and excluded.
    
      L. B. Bunnell, for resp’t; Stimson & Williams, for app’lt.
   Van Wyck, J.

This case has been before us on appeal twice heretofore, and reported in 10 N. Y. Supp, 698; 81 N. Y. State Rep., 976, and 12 N. Y. Supp., 904; 86 N. Y. State Rep., 93. The only question requiring our special consideration on this appeal, not disposed of on the former ones, is that raised by the exception to the exclusion of the question: “Did your father ever promise to repay that money to you?” The objection to its admission was that it called for a conversation with a deceased party. It was not admissible unless the plaintiff’s right to such objection had been waived. The defendant had brought out that the deceased owed her $2,500. The plaintiff’s failure to object to this did not constitute a waiver of her right to object to further or other conversations between defendant and the deceased.

Judgment and order appealed from must be affirmed, with costs.-

Osborne, J., concurs.  