
    Rollin M. Morgan, as Executor, etc., of Mary Ann Wilson, Deceased, Appellant, v. Margaret E. Foran, Respondent.
    First Department,
    June 14, 1907.
    Evidence of transactions with deceased — waiver — bar of statute — - objection, when sufficient.
    The fact that an executor suing for the conversion of property belonging to an - estate testifies that the defendant admitted to him that she held such property, does not permit the defendant to testify as to personal transactions with the deceased contrary to the prohibition of section 829 of the Code of Civil Procedure. The testimony of the executor did not relate to a transaction with the deceased, so as to waive the protection of the statute.
    The objection that such testimony calls for “personal communications, inadmissible under section 829 of 'the Code,” is sufficiently specific to challenge the competency of the witness under that section.
    Scott, J., dissented, with opinion.
    Appeal by. the plaintiff, Rollin M. Morgan, as executor, • etc., from a judgment of the Supreme Court in favor of the defendant, entered in-the office of the clerk of the county of Mew York on the 15th day- of January, 1906, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 12th day of December, 1905, denying the plaintiff’s motion for a new trial made upon the minutes. " .
    
      Arthur L. Marvin, for the appellant.
    
      Alfred J. Talley, for the respondent.
   Houghton, J.:

' The action is for the conversion of certain moneys claimed to have belonged to plaintiff’s testatrix and which the defendant refused to deliver to- plaintiff on demand. ' Plaintiff as a witness in his own .behalf, testified that he had an interview with the. defendant shortly after the decease of the testatrix,- in which the defendant admitted to - him that she had in her hands certain moneys which were the property of the testatrix,- which she was ready to turn over to him as executor, and that she delivered a part, but refused to turn over the balance, for which this action is brought.

The defendant denied that she admitted that the balance which she now has in her hands belonged to the. testatrix, or that she promised to turn it over to the plaintiff as executor. In addition to the denial of such conversation testified to by the plaintiff-the , defendant' was permitted to testify, against the objection and exception of the plaintiff, to transactions'and conversations had by her with .the testatrix at various times prior to lier decease, "tending to show' that the money was given to her by. the testatrix. .

The- defendant was not a competent witness in her own. behalf to testify as ■ against the plaintiff executor to transactions and communications between herself and the testatrix for the purpose of establishing a gift to herself.' In defending her title to the money as’a gift she was making a claim adverse to-tile estate■ of testatrix. The language of section 829 of -the Code .of Civil Procedure expressly prohibits her from testifying to personal transactions and communications had by her with the deceased through' which she may have obtained title. That section provides that upon'the trial of an action a party of person interested in the event shall not be .examined as a witness, in his own behalf or interest, against the executor or administrator of a deceased person concerning-a personal transaction or communication between-the witness and the deceased person, unless the executor or administrator shall‘have been examined in his own behalf * or-the testimony'of the deceased person is given in évidence concerhing-the same transaction or communication. Even where the executor has testified to one -transaction,. the door is not open for the defendant to testify to other or different transactions, but -Ire is competent only to testify respecting that particular one. (Rogers v. Rogers, 153 N. Y. 343.) The plaintiff executor did not testify to any communication..with the decedent, but only to a conversation with the defendant herself. Of course she could deny that she had the conversation with the plaintiff to which he testified, but she could not justify lierz retention of the money by her oWn affirmative testimony that-the testatrix had delivered it,to her with words of gift. In doing so she was testifying in her own behalf, and against' the executor of the deceased person from whom she claimed title, and going beyond -a denial of her admission, which denial she could not fortify by detailing, communications had with 'the deceased. (Cole v. Sweet, 187 N. Y. 488.)

The respondent does not urge that the objection of the plaintiff was not-sufficiently specific to raise the question of the incompetency of the witness to testify. The objection was that the questions called for “ personal communications, inadmissible under the provisions of Section 829 -of the Code.” Strictly speaking, the objection should have been that the. witness was incompetent to answer the questions, because they-involved personal transactions and communications ' between her and the deceased which were prohibited by that section of the Code. This was the purport of the objections made, and they must have been so understood by the court and counsel, and we think they were sufficient to challenge the competency of the witness. (Russell v. Hitchcock, 105 App. Div. 315.)

The testimonyof the defendant was of the most vital character, and, she being incompetent to give it, the judgment and order must be reversed and a new., trial granted, with costs to the appellant to abide the event. '

Pattekson, P. J., McLaughlin and Laughlin, JJ., concurred; Scott, J., dissented. "

Scott, J. (dissenting):

In my opinion the plaintiff opened the door wide for testimony on the part of the defendant as to the circumstances under which she received the money now sued for. The only evidence that defendant ever received the money from decedent was testimony on the part of plaintiff and his partners that defendant" admitted to them in their office that decedent liad given her the money." The proof of this admission was equivalent to calling defendant as a witness and eliciting from her by direct questions the fact that at a certain time or times the decedent had given her a sum of money. In such a case there is-no question that the door would have been opened to defendant to testify as to the whole transaction between " herself and the decedent, even to the' extent of showing that the money was a gift to her. (Mahoney v. Jones, 35 App. Div. 84; Nay v. Curley, 113 N. Y. 575.) In the latter case it was said, with reference to section 829 of the Code of .Civil Procedure: “ That section was not intended to abrogate the principle in the law of evidence that where a party calls a witness and examines him as to a particular part of a communication or transaction, the other party may call out the whole of the communication or transaction hearing upon or tending to explain or qualify the -‘particular part to which the examination-of. the other party-was directed.” Without' defendant’s admission that she had received. the money from decedent the plaintiff 'could have, proven no, cause of action. Having elicited that admission, which'certainly involved a personal transaction with the decedent, the plaintiff could not in my opinion rest his recovery upon -that-admission and preclude defendant froim stating the-, whole .transaction, concerning- which the plaintiff had questioned her in his office, no further than suited the purpose lie had in .view. The admissions said to have been made by defendant to plaintiff were something more than a voluntary .admission and statement such as is- referred to in Cole v. Sweet (187 N. Y. 488), and which as therein stated would not open the.way to testimony-by the defendant. ■ True the defendant was under no compulsion to answer any-of plaintiff’s questions, but when we consider that this plaintiff was a lawyer;, that lie had requested defendant to call at' his office; that' she had no professional .advice- at the timé, and may ■ not be presumed to have known the. effect of any statement made by her, or that she could not thereafter explain or--amplify her admission,- the .reason for holding that the statute does not forbid - her to testify seems’to me to be complete. As was. said in Cole v. Sweet (supra): “Equality cannot be preserved, nor unfair advantage prevented; if a party.is allowed to do indirectly that which he could not do directly,” The evidence objected to was, therefore, in my opinion, properly received. .

In any event the plaintiff failed to make out the cause of action alleged in the complaint ánd should have, beeh nonsuited. He elected to sue in conversion, alleging that the defendant wrongfully took the property of the decedent. Of such wrongful taking there was not a particle of evidence.

In my opinion the judgment was right and should be affirmed.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. . ,  