
    Dan H. Davis, Resp’t, v. John W. Gallagher et al., Adm’rs, App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 17, 1891.)
    
    1. Evidence—Code Crv. Pro., § 829.
    Plaintiff, a stepson of defendants’ intestate, claimed for services rendered and grain; etc., furnished, and it was arranged that two neighbors, C. and N., should be called into arrange a settlement, and in their presence plaintiff made a full statement of matters involving personal transactions with deceased. Upon the trial of this action plaintiff, in his own behalf', and C. and N. were allowed to state what was said on said occasion, for the purpose of showing that defendants, by sitting by in silence, admitted plaintiff’s claim. Held, error, as the evidence was both hearsay and in violation of Code Civ. Pro., § 829.
    
      2. Same—Res gesta:.
    A declaration, in order to become res gestas, must be made- cotemporaneously with the event sought to be proved or else be so closely connected with it as to become a part thereof.
    Appeal from a judgment of the general term, fourth department, affirming a judgment entered upon the report of a referee.
    
      J. W. Shea, for app’lts; T. W. Skinner and G. G. Brown, for resp’t.
    
      
       Reversing 29 N. Y. State Rep., 882.
    
   Haight, J.

This action was brought to recover pay for services rendered by the plaintiff and his wife to the defendant’s intestate during his lifetime, and also for hay, com, beans, pasture, cow, etc., had by such intestate.

It appears that the plaintiff was a step-son of the deceased, and had lived in his family from the time he was eightyears of age; that a few days after letters of administration had been issued to the defendants the parties had a conversation in reference to the plaintiff’s claim and then arranged to call in two neighbors, Mr. Cal-kins and Mr. Mies to see if they could arrange a settlement; that on the following day there were present at the house of Mr.Price, Messrs. Calkins, Hiles, Gallagher and wife, Mrs. James L. Price, Miss Bumpus, Mr. Lewis Price and the plaintiff; that thereupon the plaintiff was called upon by Calkins to make a statement in reference to his claim and he did so, giving the extent of time that he had worked for the deceased after he became twenty-one years of age; the amount that such services were worth; the transactions in reference to the corn, hay, pasture, cow, etc., with an account of the services of his wife, and other matters involving personal transactions with the deceased.

Upon the trial of this action the plaintiff was called as a witness in his own.behalf and was permitted to state what had been said by him on the occasion referred to, under the objection and exception of the defendants. This evidence was allowed for the purpose of showing admissions by the defendants. It appears that they sat by in silence, making no objections except in reference to two or three items, and it is claimed that by maintaining silence they are deemed to have admitted that the statements and claims of the plaintiff were true and well founded. Calkins and .Niles were also called upon and allowed to give similar evidence in reference to the statements made by the plaintiff.

We do not regard this evidence competent. It is not only hearsay, but much of it is in violation of the provisions of § 829 of the Code of Civil Procedure. By permitting this class of evidence to be given the plaintiff was enabled to establish his claim against the estate of the deceased by showing what he had said on a former occasion when not under oath.

It is true that he seeks to justify this upon the theory that the defendants sat by, listened to it and made no objection; that Cal-kins had said to the defendants that they could make their objections as the plaintiff proceeded with his statement; but Gallagher testified that he had no prior knowledge of any of the items of the plaintiff’s claim against the estate. If he had no prior knowledge in reference to such claims he could not be expected to be in a condition to make objection to the statements made by Davis, and his remaining silent whilst the plaintiff was making his statement to the neighbors could hardly be construed into an admission that his claims were just But if we should construe the silence of the defendants as indicating an intention to admit the statements of the plaintiff, even then we think the evidence would be incompetent. Ordinarily an admission by one administrator is not binding upon his co-administrator as against the heirs or devisees of the deceased. Elwood v. Deifendorf, 5 Barb., 398-406; Hammon v. Huntley, 4 Cowen, 493; The Cayuga County Bank v. Bennett, 5 Hill, 236; Whiton v. Snyder, 88 N. Y., 299.

But there are cases in which the admissions or declarations of administrators and executors may be evidence, as for instance where they are made while engaged in the performance of a duty pertaining to the estate in a representative capacity, in which the declaration is pertinent and accompanies the act so as to constitute a part of the res gestae. Church v. Howard, 79 N. Y., 415-419.

The administrators were engaged in trying to settle a disputed claim against the estate. They may therefore be said to have.been acting in their representative capacity and in the discharge of their duty, but the claims of plaintiff under consideration related to past transactions with their intestate, and, as Gallagher has testified, pertaining to matters not within his personal knowledge. No admission, therefore, if made by him would constitute a part, of the res gestee.

Bes gestae is the transaction or subject matter. What was said and done at the time of the transaction out of which it is claimed the liability was incurred may be given in evidence as part of the res gestae, thereby showing the true character of the transaction. A declaration, in order to become res gestee-, must be made coteraporaneously with the event sought to be proved or else be so •closely connected with it as to become a part thereof.

It consequently follows that the judgment should be reversed, and a new trial granted, with costs to abide the event

All concur, except Follett, Ch. J., not voting, and Vann, J., not sitting.  