
    Beekman T. Burnham, Appellant, v. Emily A. Burnham and Others, Respondents.
    
      A judgment against an executor is not evidence against Ms decedent's devisees — the testimony of witnesses, since (deceased, given in the action against the executor is inadmissible against the devisees — testimony as to a personal transaction.
    
    A judgment against an executor obtained by a creditor of the testator is not evidence of the existence of the debt in an action brought by the creditor against devisees of the testator to recover the debt, as there is no1 privity between the devisees and the executor.
    In an action by the judgment creditor against the devisees, proof of testimony tending to establish the existence of the debt, given upon the trial of the action. ■ against the executor by witnesses who have since died, is inadmissible.
    Testimony by the plaintiff as to conversations which took place in his presence between the testator and his son is incompetent under section 839 of the Code of Civil Procedure.
    Appeal by the plaintiff, Beekman T. Burnham, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk, of the county of New York on the 25th day of April, 1899, upon the decision of the court rendered after a trial at the New York Special Term.
    
      William B. Ellison, for the appellant.
    
      Williamn Ford Upson, for the respondent Emily A. Burnham.
    
      Charles Strauss for the infant respondents.
   Rumsey, J.:

The action was brought to charge the defendants, as devisees under the will of Elbert L. Burnham, for a d.ebt of the decedent, pursuant to section 1843 of the Code of Civil Procedure. After trial at Special Term the complaint was' dismissed, and from the' judgment entered upon that dismissal this appeal is taken.

The learned justice who decided the case held that the plaintiff had not established the debt against the decedent, and that the claim of the plaintiff against the defendants here was barred by the Statute of Limitations. In the view which we have taken of this case it is not necessary to consider the correctness of the latter conclusion; because we are' of the opinion that the court was right in holding that the evidence did not prove that the decedent was indebted to the plaintiff.

Before, this action was brought the plaintiff had recovered a judgment against the executrix, of the decedent. This judgment was offered in evidence, the plaintiff claiming that it was sufficient to establish at least prima facie against the defendants-the existence of the debt. It was objected to by the defendants upon the ground that the devisees were not in privity with the executrix, and that, therefore, the judgment was not evidence against them. The court, while seeming to accede to this proposition, received the judgment in evidence. The plaintiff, therefore, has no ground to complain in that regard. But it is apparent that upon the final determination of the case the court did not regard the judgment as' conclusive evidence of the debt, and it is not at all certain that it was even accepted as prima facie. It is necessary, therefore, to consider what weight was to he given to that judgment as proof of the debt.

There can be no doubt that at common law an heir or devisee was ■ not in privity with the executor of the decedent. (Wms. Exrs. 315; Sharpe v. Freeman, 45 N. Y. 802; Baker v. Kingsland, 10 Paige, 366; Ferguson v. Broome, 1 Bradf. 11.)

That rule has never been limited in this State, nor has the relation of a devisee of a decedent towards his executor been at all changed. It is quite true "that, many years ago, it was provided that in a proceeding before a surrogate to sell the real estate of the decedent to pay his debts the judgment against the executor was presumptive evidence of the debt. (Code Civ. Proc. § 2756.) But while that provision of the Code changes the rule, in so far as that particular proceeding in the Surrogate’s Court is concerned, it does not apply to any other court to change the rule as it was at common law. The principle is so well established in this State that further discussion is not necessary upon this point.

We have examined the casés cited ‘in other States in which it has:, been held that such a judgment is either prima facie or conclusive evidence against the heirs of the decedent.. It is sufficient to say,, perhaps, that these cases do not affect the rule in this State. The-cases themselves are decided upon a view of the law which has never been taken in this State, and we cannot follow them in the face of the well-settled principles established here.

The conclusion we have reached in that regard is, therefore,, that the plaintiff is not aided in this action by the judgment which he recovered in the action against the executrix, because that judgment is not evidence against these defendants.

The plaintiff, after proving that certain of the witnesses who had1 given testimony at the trial of the action against the executrix were-dead, offered to prove what had been testified to by them, claiming-that that testimony was material, because it tended to show the existence of the debt and that it was competent, because the defendant in the action in which it was given was in privity with the defendants in this action. The defendant in that action was the executrix of Elbert L. Burnham, and in this action the defendants are thedevisees under his will. As we have seen, there is no privity between them and the parties are not the same, nor is there any such identity of interest as would permit the admission of testimony of this nature, and the ruling of the learned justice in excluding it? was correct.

The evidence of the plaintiff as to the conversations which took place in his presence between the decedent and his son was, as we-, think, properly excluded under section 829 of the Code of Civil Procedure.

The plaintiff offered in evidence, as tending to prove the debt, the books of the firm of which the .plaintiff and the defendants’1 testator had been members. The debt which the plaintiff sought to recover was based upon the claim that the defendants’ testator-had overdrawn his account as a member of the firm, and the amount claimed was the proportion of the overdraft to which he was entitled. It was claimed by him that the fact of this overdraft was shown by the books which were offered in evidence and received. It appeared that the firm had been in business some time before 1865, and" that it had continued after 1865 and down to the time of the death of the defendants’ testator. The books which were offered and received in evidence began in 1865, and contained a part of the dealings of the firm until the time of the testator’s death. But it does not appear that the books offered were all'the books in which the accounts in question were kept, nor what was the condition of the accounts' of the parties when the continuation of the ■partnership began, nor are the books presented here so that we can determine anything as to the ' accounts themselves. There is presented, however, an abstract of the books made by one who says he is an expert accountant, but it appears that one or two of the books ■ of the firm from 1865 to 1888 were lost, and that in making the abstract presented the accountant did not examine the lost books. It is not' made clear, therefore, that the abstract was an accurate statement of the result of the examination of all of the books of the firm, and for that reason the court below cannot, nor can we, rely upon it as establishing the amount due from the «testator to the plaintiff.

The result of the consideration of the whole case, therefore, is that the determination of the court below, that the. plaintiff had failed to prove as against these defendants the debt which lay at the basis of this action was’correct, and we find no error in his rulings, and for these reasons the judgment must be affirmed,, with costs to" the defendants.

Patterson, O’Brien and Ingraham, JJ., concurred; Van Brunt, P. J., concurred in result.

. Judgment affirmed, with costs to the defendants.  