
    Apollonia Warth, Trading and Doing Business under the Firm Name and Style of Albin Warth, Respondent, v. Jacob Kastriner, Defendant, Impleaded with Charles Eisenman, Appellant.
    Second Department,
    July 24, 1906.
    Evidence — section 829 of the Code of Civil Procedure construed—transactions with deceased agent of deceased principal — pleading— Statute of Frauds—unilateral contract.
    A party may testify to personal transactions and communications with an agent who makes or lawfully modifies (a contract for his principal, although both the principal and agent are dead. Such evidence is not within the prohibition of section 829 of the Code of Civil Procedure.
    
      It seems, that when a unilateral license, signed only by the plaintiff's assignor and not by the defendant, is set out in the complaint, a defendant who wishes to avail himself of the Statute of Frauds must plead the same.
    
      Appeal by the defendant, Charles Eisenman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 18th day of October, 1905, upon the verdict of a jury rendered by direction of the court after a trial at the Richmond Trial Term.
    
      Henry B. Ketcham [J. Ard Haughwout with him on the brief], for the appellant.
    
      Augustus J. Koehler, for the respondent.
   Hirschberg, P. J. :

The plaintiff sues as the successor in interest of Albin Warth, who died on May 7, 1892, leaving a last will and testament in which he bequeathed to her the rights and interests which she seeks to enforce in this action. The action is brought to recover royalties claimed to be due under the terms of a unilateral license contract dated April 15, 1892, signed by Albin Warth, but not signed by the defendants or either of them. The Statute of Frauds was not pleaded as a defense, and the judgment is based upon the ground that the appellant by accepting the contract and retaining it until the trial became bound by its terms.

While it is not necessary to decide that question on this appeal, I am inclined personally to the view that inasmuch as the contract, unsigned by the defendants, was attached to the complaint, the appellant should have pleaded the Statute of Frauds if he desired to avail himself of its provisions. (See Honsinger v. Mulford, 90 Hun, 589; affd., 157 N. Y. 674; Hardt v. Recknagel, 62 App. Div. 106; Kramer v. Kramer, 90 id. 176; Crane v. Powell, 139 N. Y. 379; Matthews v. Matthews, 154 id. 288.) The case of Brauer v. Oceanic Steam Navigation Co. (178 N. Y. 339) is not in conflict. In that case the complaint alleged a written contract. The court said (p. 343): “ It is urged that the defendant is not in a position to raise this objection, the statute not having been pleaded. Ever since the decision in Crane v. Powell (139 N. Y. 379) the law has been settled in this State, whatever uncertainty there may have been on the subject before, that to avail himself of the defense of the Statute of Frauds the defendant must in a proper case plead the statute. It is to be borne in mind, however, that in the case now before us the plaintiff declared on a written contract and 1 the statute concerns oral contracts only; written contracts, of whatever nature, are untouched by its provisions.’ (Browne on Frauds, see. 344a.) It is difficult to see how the defendant could plead that a written contract was not reduced to writing nor any note or memorandum thereof made in writing.”

Whatever view may be taken, however, of that question, it is clear that the learned trial court erred in the exclusion of evidence-offered by the appellant which was designed to qualify the force and effect to be given to his apparent acceptance of the unilateral contract. It is not obvious that the evidence was intended to vary the terms of the contract, and its exclusion cannot be justified on the ground taken by the respondent, that it was incompetent under section 829 of the Code of Civil Procedure. The contract was not given to the appellant by Albin Warth, but by his agent, Henry Warth. It was established that he was the general manager of the business and made contracts for his principal. He also was dead at the time of the trial, but I think, although no case precisely in point has been found, that evidence could be given of personal transactions and communications with him, otherwise competent, notwithstanding his decease at the time of the trial. Such evidence is not excluded by the language of section 829 {supra). In Hildebrant v. Crawford (65 N. Y. 107) it was held, in construing a similar section of the Code of Procedure, that a party to an action was not prohibited from testifying to a transaction or communication between himself and a deceased agent of the opposite party, and that he may also testify to a conversation heard by him between a principal and agent, both deceased, as against a successor in interest of the principal. In Pratt v. Elkins (80 N. Y. 198) it was held that the provision of the Code of Civil Procedure (§ 829), prohibiting a party from testifying in certain cases to personal transactions with a deceased person, does^ not extend to transactions with the agent of such person.

I think the logic of these two decisions would permit a party to testify to personal transactions' and communications with an agent in making .or lawfully modifying a contract, notwithstanding the principal and agent are both deceased. The plaintifí herein derives no title or interest from the agent.

The judgment should be reversed.

Woodward, G-aynor, Eich and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event. 
      
      See Browne Stat. Frauds (5th ed.), § 344a.—[Rep.
     
      
      See Code Proc. § 399.—[Rep.
     