
    ERASTUS CORNING, Respondent, v. JAMES T. WALKER, Appellant.
    
      Code of Civil Procedure, sec. .829 — a party cannot examine Ms adversary as to transactions with a deceased person and thereby let in his own testimony.
    
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The court, at General Term said: “ The defendant also claims that the referee erred in excluding the defendant from proving an agreement with the late Mr. Corning, deceased, as to his services, upon the ground that section 829 of the Code forbade it.
    “As a part of the plaintiff’s claim was by assignment from the late Mr. Corning, the evidence was properly excluded. Neither was the evidence proper, because the plaintiff had testified, 1 I Enow there could have been no arrangement between defendant and late Erastus Corning as to payment for defendant’s services, from what Mr. Corning told me; and I have entire charge of his business.’ This evidence, assuming it relates to the same subject as that to which defendant sought to testify, was not given by plaintiff ‘ in his own behalf,’ as it should have been if it was proper for the defendant to contradict it. It was obtained by the defendant upon the cross-examination. A party cannot, 'by examining his adversary as to a transaction with a deceased, claim that such evidence is given by his adversary ‘ in his own behalf,’ and that therefore he may contradict him. That is not the meaning of the Code. It was testimony offered by the defendant himself, and ¡therefore he could not, by his personal testimony, contradict it.”
    
      Wood (St Russell, for the appellant.
    
      Amasa J. Parker, for the respondent.
   Opinion by

Westbrook, J.

Present — Learned, P. J., Bookes and Westbrook, JJ.

Judgment affirmed, with costs.  