
    John P. Eisenlord, Resp’t, v. Catharine L. Eisenlord et al., App’lts.
    
      (Supreme Court, General Term,, Third Department,
    
    
      Filed July 2,1888.)
    
    ^Ejectment—Evidence—Code Crv. Pro., § 829—Interest of witness— When it renders testimony incompetent.
    This was an action of ejectment to recover lands of which Peter O. Eisenlord died seized and intestate. The plaintiff claimed to be his legitimate son and only heir at law. He is the son of Margaret Lipe. The plaintiff’s title rests on the proof of the marriage of Margaret Lipe to Peter 0. Eisenlord. If that marriage never took place the plaintiff is an illegitimate child of Margaret and the defendant, and therefore the heir at law of Peter and entitled to possession. Margaret, the plaintiff’s mother, was allowed to testify as a witness in behalf of the plaintiff as to the marriage. Held, this was error; that under Code Civil Procedure, § 829, the testimony of Margaret was incompetent. That she was interested in the result of the action and should not be allowed to testify concerning personal transactions and communications between herself and Peter Eisenlord.
    Appeal by the defendants from a judgment entered upon the verdict of a jury upon the trial at the Fulton county ■circuit. Also from the order denying the motion made upon the minutes to set aside the verdict and grant a new trial.
    The action was ejectment to recover lands in Fulton county of which Peter 0. Eisenlord died seized and intestate. The plaintiff claimed to be his legitimate son and only heir at law. He is the son of Margaret Lipe, and was born October 21, 1857. Peter O. Eisenlord was a physician at Palatine, Montgomery county. He died June 30, 1885, never having lived with Margaret Lipe as her husband. The defendants are his heirs if the plaintiff is not.
    The claim of the plaintiff rests upon the truth of the allegation that in June, 1857, Dr. Eisenlord and Margaret Lipe were secretly married at St. Johnsville by a justice of the peace named Mosher.
    The testimony of Margaret Lipe is to the effect that she was then pregnant with plaintiff by her previous illicit conztection with Dr. Eisenlord; that the Doctor asked her to go to Mosher’s, there to be married; that they did go, and the ceremony was performed, no witnesses being present; that he then went his way and she hers, and they never came together again. It appeared that they never recognized each'other as husband and wife; that the plaintiff was baptized as her illegitimate son; that she never claimed to be the wife of Dr. Eisenlord in his lifetime ; that she married one Austin in 1872 ; that her father recovered $1,000-of Dr. Eisenlord in an action against him for seduction.. Lipe v. Eisenlord, 32 N. Y., 229.
    The justice testified that he performed a marriage ceremony at St. Johnsville, in June, 1857, in which Dr. Eisenlord was one party, and a person whom he introduced as Margaret Lipe, was another ; that he made no record of it, and never mentioned it m Dr. Eisenlord’s lifetime. The other testimony consisted chiefly of the alleged declarations, of Dr. Eisenlord, some tending to show that he was married and had a son, others that he regarded the claim made by Margaret that he was the father of the plaintiff, as a great outrage.
    
      A. J. Abbott, for pl’ff; Geo. W. Smith, for def’ts.
   Landon, J.

We think it was error for the court to allow the plaintiff to examine Margaret Austin, his mother, as a witness in his behalf on the trial touching the alleged marriage of herself with Dr. Eisenlord, and what took place between them immediately preceding and following the alleged marriage. Section 829 of the,Code of Civil Procedure declares that “ upon the trial of an action * * * a person interested in the event * * * shall not be examined as a witness in his own behalf or interest * * * against a person deriving his title or interest from, through or under a deceased person * * * concerning a personal transaction or communication between the witness and the deceased person.”-

First. Margaret Austin was interested in the event of this-action. The rule laid down by the elementary writers, Greenleaf Evi. (§ 390), and approved in Hobart v.Hobart (62: N. Y., 82), is “the true test of the interest of a witness is that he will either gain or lose 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., 285. The judgement in favor of the plaintiff would furnish her with important evidence to establish her claim to dower in the premises described m the complaint. Upon this plaintiff’s recovery, suppose Margaret brings her action against him to recover her dower. This judgment roll would show against the plaintiff, claiming under it and accepting its terms, that Dr. Eisenlord died seized of the premises, leaving as the complaint alleges this plaintiff his “lawful descendant, son, and sole heir at law of the said Peter O. Eisenlord, deceased, and as such heir at law entitled in fee to the immediate possession thereof.” Evidence aliunde would be competent to show that upon this trial, and essential to his recovery, he alleged and established the facts, that Margaret Austin was his mother; that prior to his birth she and Dr. Eisenlord were lawfully married. It is not essential that she should be a party to the present action. It is nevertheless evidence in her behalf against him, that he in order to obtain title to the land, solemnly declared, and procured the truth of the declaration to be judicially established, that all the conditions upon which Margaret’s right to dower depend were absolutely true in fact. It is not received as a judgment but as his declaration. 1 Greenleaf on Evi., § 527 a; Cook v. Barr, 44 N. Y., 156. It is impossible to see how this plaintiff either in law or fact could gainsay the truth of his solemn declaration.

Second. Margaret Austin being thus interested in the event, was examined touching the very matter upon which her interest depended.

Her testimony which tended to- established the plaintiff’s title to the land tended just as completely to establish her own.

Third. She testified against the defendant’s, whose title whatever it was, was derived through Dr. Eisenlord, and not otherwise.

Fourth Her testimony was concerning the personal transactions and communications between Dr. Eisenlord and herself. The authorities are to the same effect. Sandford v. Ellithorp, 95 N. Y., 48; Steele v. Ward, 30 Hun, 555; Miller v. Montgomery, supra.

Foi this error the judgment should he reversed and a new trial granted costs to abide the event. We think also the order for a new trial should have been granted upon the facts. We concur in the view taken by Mr. Justice Fish, in the case next reported. (See note by Learned, P. J., at end of next case.)

Learned, P. J., concurs; Ingalls, J., concurs in result.  