
    NORMAN B. SPRAGUE, Respondent, v. JAMES C. SWIFT, Appellant.
    
      Evidence — the payee of a note may testify as to personal 1/ransaetions had with a deceased maker of a joint and several Tiote, in an action against the other makes' — Code of Cml Procedure, sec. 829.
    Appeal from an order made at Special Term denying a motion for a new trial made on a case and exceptions, after a judgment in favor of the plaintiff had been entered on a verdict rendered at the Erie Circuit. •
    The action was upon a joint and several promissory note alleged to have been made by one Stilwell and the defendant. The defense was a denial of the execution of the note by defendant, and payment by Stilwell for whose accommodation the note was made. Stilwell died before the action was commenced.
    . The court at General Term said: “ The plaintiff, to establish the issues on his part, was permitted as a witness in his own behalf to testify to transactions and conversations between himself and Stilwell. The defendant objected at the trial, and he now contends, that the plaintiff was incompetent to testify to those matters, under section 829 of the Code, on the ground that the defendant is sought to be charged in the action as the ‘survivor’ of Stilwell. The objection was properly overruled. The defendant is not a ‘ survivor’ within the meaning of the section. As the note sued on was several as well as joint he was liable to a separate action as well before as after the death of Stilwell.”
    
      Osgoodby, Titus <& Moot, for the appellant.
    
      Lewis & Lice, for the respondent.
   Opinion by

Smith, P. J.;

Hardin, J., concurred; Haight, J., not sitting.

Order affirmed.  