
    Agnes E. Killian, Appellant, v. Katherine E. Heinzerling, as Administratrix, etc., of John Schellhase, Deceased, Respondent.
    First Department,
    July 12, 1906.
    Evidence—executors and administrators — waiver of protection of section 829 of the Code of Civil Procedure by executor — proceeding under section 2709 of the Code of Civil Procedure—new trial, when evidence of transaction with deceased erroneously stricken out.
    When, in a proceeding by a representative to discover the property of an estate alleged to be withheld, the person is examined concerning personal communications or transactions with the deceased, all the objections under section 829 of the Code of Civil Procedure to his testimony to the same in future litigation is waived by virtue of the provisions of section 2709 of the Code of Civil Procedure.
    The fact that the evidence is elicited by questions put by the surrogate himself, ■ and not by the counsel for the representative, does not change the rule, if the questions put were necessary to enable the surrogate to determine the issues raised by the representative.
    When, in an action subsequent to such examination, the person examined seeks specific performance of an alleged gift by the decedent of certain bonds and the assets of a business, it is error to exclude evidence of communications and transactions with the deceased supporting the gift of the bonds as to which she was previously examined by the surrogate.
    But she may testify only as to the matters brought out on the prior examination. Hence, if the examination related only to the gift of the bonds, she may testify to transactions with the deceased in relation thereto, hut not as to transactions relating to the alleged gift of the assets of the business, which transactions were not brought out on the prior examination.
    . Although on trial at Special Term such evidence as to the- gift of the bonds was admitted conditionally and then erroneously stricken out, the appellate court has no power to act on the excluded evidence as if it were in the record, but the merits of the case must be determined on a new trial at Special Term.
    Appeal by the plaintiff, Agnes E. Killian, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of June, 1905, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.
    
      Edward Miehling, for the appellant.
    
      John E. Donnelly, for the respondent.
   Patterson, J.:

This action is, in effect, one for the specific performance of a verbal contract which the plaintiff alleges was made between herself and one John Schellhase, since deceased, but in it is involved also the right of the plaintiff to property which she claims was given to her by Schellhase. The complaint contains the following allegations : That the decedent in his lifetime was the owner of a lease of premises in Fourth avenue, in the city of Hew York, and of the good will of a business which he conducted on said premises and of certain enumerated articles of merchandise of the value of §7,000; that from the month of April, 1898, until the death of Schellhase in April, 1904, the plaintiff was the superintendent and manager of his business; that in the month of March, 1904, plaintiff notified him that she was unwilling to continue in his employment on account of the condition of. her health; “that the said John Schellhase thereupon, in consideration of the long, faithful and valuable services rendered by the plaintiff, and in further consideration of the agreement of this plaintiff to continue in business with the said John Schellhase for a further term of one year, at which time the said John Schellhase would retire from business, or up to the time of his death if that should occur sooner, to give, grant and convey to said plaintiff the said lease, business, goods, merchandise and chattels, and a sum of money sufficient to carry on the business; that thereupon this plaintiff accepted said offer and remained in the business of said John Schellhase up to the time of his death, in April, 1904; and the said John Schellhase in pursuance of such agreement did give to this plaintiff four thousand dollars in negotiable bonds of the Metropolitan Street Railway Company as capital and all the goods, merchandise and chattels above enumerated, but failed to turn over the lease and good-will of said business; that the plaintiff was thereafter the owner of said goods, wares, merchandise and chattels and in lawful possession thereof.” The plaintiff then makes formal allegations of the appointment of the defendant as administratrix of the goods, etc., of the deceased, and that such administratrix has taken possession of all the goods, chattels, credits, etc., against the protest of the plaintiff, and has prevented her from taking possession thereof and of the leasehold premises, and that plaintiff has demanded the property and the defendant has refused to turn over the same to her. Judgment was asked for the possession of the goods, wares, merchandise and chattels, or for the sum of $7,000 in case possession cannot be given to plaintiff; and then follows a further prayer for specific performance of the alleged oral agreement. The answer puts in issue all the material matters relating to such alleged agreement or part performance thereof. On the trial the complaint was dismissed on the merits.

The aspect in which the cause was presented by the plaintiff at the trial was that of a parol agreement partly performed, that part performance consisting in an alleged delivery, actual or symbolical, of $4,000 in negotiable bonds of the Metropolitan Street Kailway Company, as an amount of capital furnished the plaintiff to enable her to conduct the business when she should be entitled so to do. under the alleged agreement.

Upon the evidence on which the learned judge passed, and which alone was considered by him in determining the action, we might feel constrained to sustain the judgment now appealed from. That evidence was insufficient in his opinion (47 Mise. Kep. 511) to maintain the plaintiff’s claim. It consisted of the testimony of several witnesses, neither of whom testified to the actual making of a contract between the plaintiff and the decedent, although each of them testified to certain different isolated facts tending to support the plaintiff’s claim, and particularly the gift of the bonds. But the plaintiff was examined as a witness and she testified in detail to conversations had with Schellhase, and her testimony, if it is to be believed, established the making of a contract; oerformance of what was required of her and part performance by Schellhase. Objection was taken in due and proper form to her competency as a witness concerning conversations or transactions between herself and Schellhase, under the interdiction of section 829 of the Code of Civil Procediere. The learned trial judge, with the acquiescence of the defendant, allowed the witness to testify, under a reservation, however, of the right to strike out all her testimony at a further stage of the trial. He subsequently did strike it out of the record, and the plaintiff now insists that that ruling of the court constitutes error and that the evidence should have been retained and passed upon.in the determination of the cause. That contention of the appellant is founded upon section 2709 of the Code of Civil Procedure, and it is urged that under the provisions of that section the defendant qualified the plaintiff and authorized her to testify as a witness in this action in her own behalf. It appears in the record that the defendant instituted a proceeding in the Surrogate’s Court to discover assets and property of the decedent’s estate and in that proceeding called the plaintiff as a witness." It is manifest that the particular subject of inquiry in that proceeding was the bonds of the Metropolitan Street Railway Company, being the same bonds which the plaintiff claims were given her in part performance of the agreement which she alleges was made with Sehellhase. Pursuant to an order of the surrogate, the plaintiff appeared before him and through her counsel objected to being examined, on the ground that it appeared from the answer she interposed in the proceeding that there was a dispute as to the title of the Metropolitan Railway bonds and that under section 2710 of the Code of Civil Procedure the proceeding should end. The surrogate ruled that under the amendment of section 2709 made in the year 1903, the proceeding could not be dismissed as a matter of right; and the witness being sworn declined to answer, whereupon the surrogate declared that if she refused to answer she would be' committed. The objection was then withdrawn and the witness testified that she knew John Sehellhase in his lifetime; she gave the date of his death and stated that she knew that he had a safe deposit box in the Hanover Safe Deposit Company, and that in the box were four' Metropolitan Street Railway bonds of the par value of SI,000 each; that she had the key to the safe deposit box; that a demand was made upon her for the key with which she refused to comply. Ho further questions were asked by counsel for the administratrix, but the surrogate asked the witness if the bonds were then in the box and she said they were when the box was examined, and that she still had the keys thereof; that there were two keys, both of which she had. The surrogate then inquired where she got the keys, to which she answered, “ Mr. Sehellhase gave me the keys; ” and that she received them from him the day he hired the box in the safe deposit company. The surrogate then asked her if she claimed to own the four bonds, and she said she did, that Mr. Sehellhase gave them to her; that she did not remember the exact date; it was the day he hired the safe deposit box. He got the bonds on that day and he hired the box that day ; he deposited them there and came up to his place of business, and when he came in he gave me the keys.” The surrogate would not permit the witness to testify to what Mr. Schellhase said to her, but asked her: “You say what happened then amounted to a giving of the bonds, is that it ? ” and the witness answered, “ Yes.” Whereupon the counsel for the administratrix applied to the surrogate for an order requiring the bonds to be turned over to the administratrix.. Subsequently the surrogate asked the witness if she had seen the bonds, to which she answered, “ Yes.” An application was then again made to the surrogate for an order directing that the bonds be turned over to the administratrix. The matter was taken under consideration, but what disposition was made of it does not appear in this record.

Under section 2709 of the Code of Civil Procedure, as amended in 1903, the plaintiff was entitled to testify on the trial of the present. action as to matters which were the subject of inquiry in the discovery proceedings in the Surrogate’s Court, and as to which she was then interrogated. She was compelled to answer. The proceeding was one instituted by the defendant, who is bound by all the provisions of law relating to the effect of such proceedings. By section 2709 of the Code of Civil Procedure it is provided among other things that if the surrogate does not dismiss the proceeding but directs the examination to proceed, the witness must be sworn to answer truly all questions put to him touching the inquiry prayed for in the petition, and that he may be examined fully and at large respecting property of the decedent or of which the decedent had possession at the time of or within two'years before his death; that a refusal to attend or be sworn or to answer a question which the surrogate determines to be proper is punishable in the same manner as a- like refusal by a witness subpoenaed to attend a hearing before the surrogate, and that the extent of the examination is in the discretion of the surrogate. The amendment of 1903 further provides that “ if 'the witness is examined concerning any personal communication or transaction between himself and the decedent all objection under section eight hundred and twenty-nine to his testimony as to the same in future litigation is waived.”

By calling the plaintiff as a witness and pursuing an inquiry as to property of the decedent of which the plaintiff had ostensible or apparent control, the defendant waived all right to object in this or any other action to the competency of the plaintiff as a witness to conversations or transactions had with the decedent in his lifetime respecting that property. The fact that the particular questions asked by the surrogate and which elicited proof of a transaction with the decedent were not put by counsel for the administratrix but by the surrogate of his own motion does not in our judgment affect the matter. The particular interrogatories put on behalf of the administratrix merely related to the possession by the witness of a key to a box in which the Metropolitan Street Kailway bonds were contained. But the whole object of the proceeding was to enable the surrogate to determine whether the administratrix was entitled to the possession of those bonds. That could not be adjudicated upon the simple proof of where the bonds were and who had possession of the key. It was necessary to proceed further and for the surrogate to determine whether the administratrix had the right to possession or whether the bonds were held by the witness under a claim of title, for in the latter case the proceeding necessarily would have to be dismissed. The questions put by the surrogate were germane to the investigation, as counsel had failed to place before him facts sufficient to enable him to determine the matter involved in the proceeding. In order that he might exercise the jurisdiction he possessed, and to prevent the proceeding being a futility, he asked pertinent and proper questions of a witness brought into court by the administratrix for the express purpose of having her right to possession determined. The witness was there by compulsory process, issued at the instigation of the administratrix, and the testimony was reluctantly given. The examination was within the discretion of the surrogate, and it cannot be said to have been an improper exercise of discretion when information was called for absolutely necessary to the determination of the proceeding before him. The witness was brought there to answer such questions, and the defendant took the risk of making the plaintiff’s testimony competent in a subsequent action involving the subject-matter of the inquiry then before the surrogate.

It is claimed that if the foregoing views are correct, the plaintiff on the present trial nevertheless could be examined only with respect to the bonds of the Metropolitan Street Kaihvay Company and the transaction had with the decedent respecting those bonds. We think that view is the correct one. and the whole subject of the plaintiff’s alleged contract relations with Sehellhase was not set at large by her examination in the Surrogate’s Court. Conceding that to be so, the testimony of the plaintiff was admissible as to the transaction with Sehellhase relating to the delivery to her of the keys of the safe deposit box. The purpose of 'that testimony was to establish the gift of the bonds, and the claim that such a gift would be effected by the delivery of the keys of the box in which the bonds were deposited, accompanied by a declaration which fully indicated, that the giver had no intention to resume possession thereof, is not without support in the law. (Pink v. Church, 14 N. Y. Supp. 337; affd., 128 N. Y. 634; Cooper v. Burr, 45 Barb. 9 ; Phipard v. Phipard, 55 Hun, 437.) We do not, however, express any view of the merits of the controversy in any aspect of it, but we are of the opinion that the plaintiff was entitled to have,the trial court consider her case upon all legitimate evidence she might adduce. She has been deprived of that right. The merits of the case must be determined in the first instance at the Special Term, and we have no power to act originally upon the excluded evidence as if it were in the record.

The judgment, therefore, must be reversed and a new trial ordered, with costs to the appellant to abide the event.

O’Beien, P. J., McLaughlin, Laughlin and Olabke, -LL, concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event. Order tiled. 
      
      See Laws of 1903, chap. 526.— [Rep.
     