
    Carl R. C. Heyne, Resp’t, v. John Doerfler, Ex’r, App’lt.
    
      (Court of Appeals, Second Division,
    
    
      Filed March 20, 1891.)
    
    Executors and administrators—Evidence of claim against estate— > Code Civ. Pro., § 829.
    Plaintiff presented a claim against the estate for services as nurse and for board of decedent’s nephew and niece, and was allowed to testify before the referee, under objection, that he had a conversation with deceased about the nephew and niece coming to his house, and also to state that “ aunt cried and said I should take her (the niece) and I should receive $200.” Held, error; as the evidence was improper under § 829, Code Civ. Pro.
    Appeal from a judgment of the general term of the supreme court, second department, affirming a judgment upon the report of a referee, appointed under the statute to hear and determine a claim against the estate of Maria F. Arlt, deceased.
    The amount of the claim as presented by the plaintiff amounted to $611, and is made up of two charges. One of them is for the board of Anna John ana Emil John ; the other is for professional services rendered as nurse by plaintiff for the deceased for various periods of time between June 2, 1887, to March 18, 1888.
    The referee reported in favor of the plaintiff to the amount of $350 of the claim, allowing the whole of the $200 and a portion only of the claim for services as nurse. The appeal to this court was allowed by the court below.
    
      Jos. A. Burr, for resp’t; H. D. Birdsall, for app’lt.
   Potter, J.

The plaintiff sought to recover for his services and attendance, upon proof that he had rendered services for and attended upon the deceased at her house during her sickness, and at her request and upon her promise to pay for the same at the rate he would have earned if he had worked at his business of making cigars. He also sought to recover the sum of $200 upon proof that the deceased had promised to pay him that sum if he would take and keep Anna and Emil John, relatives of the deceased, who had recently arrived at the house of the deceased from Germany, till they should get employment. The evidence introduced upon plaintiff’s part to support these claims, including that given by the plaintiff himself, was weak and quite unsatisfactory, but under the rule that prevails in this court in respect to reviewing evidence, we do not feel warranted in reversing the judgment upon that ground. But we think the learned referee fell into errors in receiving some of the evidence given by the plaintiff himself in reference to personal transactions and communications between the plaintiff and the deceased bearing upon plaintiff’s employment and a promise of payment by the deceased.

. To support the claim of $200 it was necessary that plaintiff should prove a contract between himself and the deceased to the effect that plaintiff had agreed to keep at his house Anna and Emil John and the deceased had promised to pay him $200 for so doing. There is no pretence that such contract, if made at all, was not wholly made by parol The plaintiff was allowed to answer, under objection and exception that such evidence by the plaintiff was not competent under § 829, Code of Civil Procedure, this question: “Before Emil and Anna came to your house, did you have a conversation with Mrs. Arlt in reference to (their) coming.” Answer, “Yes, sir.” This was one step towards proving the alleged contract between plaintiff and the deceased in relation to their going to plaintiff’s house. Again, the plaintiff was asked and allowed to answer, “What did Mrs. Arlt say when. Anna John was present ? ” Answer: “Aunt cried and said I should take her and I should receive $200." This answer was received and duly excepted to. Again, the plaintiff was allowed to put in evidence memoranda showing the days and periods of time he had been at the house of the deceased.

Some, if not all of the evidence above specified was in contravention of § 829, Code of Civil Procedure.

The object and purpose of this statute is so obvious as not to require or justify any explanation. or consideration beyond that which it has repeatedly received from this court. It was said in the opinion of the court of appeals in Holcomb v. Holcomb, 95 H Y., p. 325, in relation to § 829, that, “ The words of exclusion are as comprehensive as language can express. Transactions and communications embrace every variety of affairs which can form the subject of negotiation, interviews, or actions between two persons, and include every method by which one person can derive impressions or information from the conduct, condition, or language of another. The statute is a beneficial one and ought not be limited or narrowed by construction. Although it must appear that the interview or transaction sought to be excluded was a personal one, it need not have been private or confined to the witness and deceased. If they participated it does not change its character because others were present A contrary rule would defeat the reasonable intent of the statute that a surviving party should be excluded as one interested from maintaining by his testimony an issue which in any degree involved a communication or transaction between himself and a deceased person."

It was incumbent upon the plaintiff in order to maintain the claims in this case to prove that the deceased engaged the plaintiff to keep and board Anna and Emil John and to serve and nurse the deceased, and her promise to pay him therefor. For that purpose, the plaintiff was allowed to prove that he conversed with the deceased in reference to their coming to plaintiff’s house and that he should receive from the deceased $200 therefor and that he was at the house of the deceased in Brooklyn many times and for several periods of consecutive days, leaving his own house and business in New York for that purpose, and when there, generally, no person other than the physician of the deceased in making professional visits was present.

The plaintiff’s attendance at the house of the deceased under the circumstances proved in this'case was a personal transaction between the plaintiff and the deceased and was of the utmost significance.

The testimony of the plaintiff as to the communications and transactions between himself and the deceased was pertinent to the issue upon the trial in this case and could have had no relevancy to any other aspect of it. Indeed, I am inclined to the opinion that it exceeded in weight and cogency upon the issues all the other evidence in the case, and hence it cannot be successfully maintained that the objectionable evidence did no harm or that there was sufficient evidence without it to justify an affirmance of the judgment. In re Eysaman, 113 N. Y., 62; 22 N. Y. State Rep., 136.

As these views require a reversal of the judgment, there is no occasion to consider the objections to the introduction of the memoranda of plaintiff’s attendance at the house of the deceased made, but not remembered or verified, by himself or the introduction of the will of the deceased as evidence in the case.

The judgment should be reversed, and a new trial granted.

Judgment reversed and new trial granted, costs to abide the event.

All concur. 
      
       Reversing 32 N. Y. State Rep., 960.
     