
    Martin Tillman, Respondent, v. Willis A. Rayner, as Executor, etc., of Andrew B Rayner, Deceased, Appellant.
    Third Department,
    March 11, 1908.
    Evidence—personal transactions with, decedent. .
    In an action against the estate of a decedent on an .account stated where the defense is payment by check, and where it appears that the check was not paid in the ordinary manner through the bank on which it was drawn, but was found among the decedent’s possessions after his death indorsed by plaintiff, it is reversible error to allow the plaintiff to testify that he had never received money on the check, or that he had never seen the check until after the decedent’s death. Such evidence is inadmissible under section 839 of the Code of Civil Procedure, as it concerns a personal transaction with the decedent.
    
      Appeal by the defendant, Willis A. Bayner, as executor, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 3d day of May, 1907, upon the report of a referee.
    
      Richard H. Thurston, for the appellant.
    
      Frank A. Bell, for the respondent.
   Cochrane, J. :

The learned referee has found that on June 10, 1902, the plaintiff and the defendant’s testator stated an account between themselves which showed a balance of $721.27 due from said testator to the plaintiff. This finding is not criticised.

Defendant introduced in evidence a receipt dated on said 10th day of June, 1902, for the sum of $600 in full settlement of the above-mentioned stated account, which receipt purported to have been signed by the plaintiff. A check of the same date on the First FTational Bank of Waverly to the order of plaintiff for $600, reciting in the body thereof “ settlement of ac. stated ” and signed by the testator was also introduced in evidence. Evidence was given tending to show that the receipt" was given in acknowledgment of the check and that the .latter was. delivered by the testator to the plaintiff at the time said account was stated. The check was not paid in the ordinary manner through the bank, but after the testator’s' death it was found among his possessions by the executor with an indorsement purporting to be that of the plaintiff, and there was evidence that such indorsement was genuine.

'Plaintiff disputed the delivery, indorsement and payment of the check and also the said receipt. The referee made no finding as to the delivery of the check, but on the question of payment thereof found adversely to the defendant.

The main controversy on the trial was as to whether or not the check had been paid. Plaintiff as a witness in his own behalf testified that .lie had never received any money on the check. Such testimony was duly objected to on the ground that it was inadmissible under section 829 of the Code of Civil Procedure, and to the ruling of the court admitting it an exception was taken. This testimony concerned a personal transaction with the deceased and bearing comprehensively and pertinently as it did on the vital issue in controversy its presence in the case is fatal to the judgment. (Howell v. Van Siclen, 6 Hun, 115 ; affd., 70 N. Y. 595; Brayman v. Stephens, 79 Hun, 28 ; Haughey v. Wright, 12 id. 179.)

Plaintiff also testified over an appropriate exception that he had never seen the check until a specified date, which was after the testator’s death. The force of this testimony lay, in its tendency to establish not only non-payment, but also non-delivery of the check. A witness had testified that the testator handed the check to the plaintiff at the time of the settlement of the account and that the plaintiff took it away with him. Plaintiff could not very well more effectively or forcibly deny the transaction with the deceased than by giving this testimony now under consideration. It clearly concerned a personal transaction with the deceased.

The judgment must be reversed, the referee discharged, and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed on law and facts. Beferee discharged and new ti'ial granted, with costs to appellant to abide event.  