
    Charles A. Hamlin, as Administrator, etc., of Lyman Stevens, Deceased, Respondent, v. Julia E. Stevens and Others, Respondents; Lyman A. Stevens, Appellant.
    
      Evidence — testimony of a party in interest that a.decedent was, on a certain date, at a place at which an agreement is alleged to have been made by him in the witness’- favor, is not incompetent.
    
    In an action brought to secure a judicial construction of a will, a nephew of the decedent interposed an answer demanding the specific performance of a par.ol contract between his parents and the decedent by which, as a condition of the nephew’s leaving his home in the State of Ohio at the age of ten years' and residing thereafter with his uncle in the State of New York, he was to share equally with the latter’s two daughters in their father’s estate. The mother 1 of the defendant testified that the contract was made between her and the decedent at her house in the State of Ohio on two occasions when he was vislt- ' ing there, the one in the autumn of 1868 and the other in January or February,
    • 1869. The decedent’s widow testified that he was home ill in January and February, 1869, and did not go to Ohio after the fall of 1868. The nephew was then called to the stand and testified that he saw his uncle at his parents’ house in Ohio in January or February, 1869.
    
      Meld, that the nephew’s testimony was not inadmissible under section 829 of the Code of Civil Procedure, as it was no part of any conversation or personal transaction with'the decedent. ■ ' ■
    Adams, P. J., and Williams, J., dissented.
    Appeal by the defendant, Lyman A. Stevens, from a judgment of the. Supreme Court in favor of the plaintiff and the defendants Julia E.' Stevens and others, entered in the office of the clerk of the county of Onondaga on the 17th day of July, 1900, upon- the decision of the court rendered after a trial at the Onondaga Special Term.
    
      T. E. Hancock and Thomas K. Smith, for the appellant.
    
      Homer & Waldo Weston, for the plaintiff, respondent.
    
      Goodelle, Nottingham Bros. & Andrews, for the respondent Commercial Bank.
    
      C. G. Baldwin, for the respondents Julia E. Stevens and others.
   Laughlin, J.:

This action was brought by the ■ administrator with the will annexed of the estate of Lyman Stevens, deceased, against the heirs and next of kin of the testator for the construction of his will. The appellant, Lyman A. Stevens, a nephew of decedent and a residuary legatee under the will, interposed an answer demanding a specific performance of a parol contract between his parents and decedent by which, as a condition of his leaving home at the age of ten years and residing thereafter with his uncle as if an adopted son, he was to share equally with the latter’s two daughters in their father’s estate. The case was tried at Special Term. The evidence •presented on behalf of appellant was ample, if believed, to establish a contract sufficiently clear, certain and definite, founded upon a valid adequate consideration and performance thereof by appellant and his parents, to authorize its enforcement by the court. (Heady v. Heady, 31 Misc. Rep. 636; affd., 55 App. Div. 315 ; Gates v. Gates, 34 id. 612; Godine v. Kidd, 64 Hun, 591; Todd v. Weber, 95 N. Y. 181.) At the time it is claimed that this contract was made decedent resided at Syracuse, New York, and appellant lived with his parents upon a farm in Huron county, Ohio. The principal testimony in favor of appellant on this branch of the case was given by his mother. According to her evidence, the agreement, Which was subsequently ratified by her husband, was made between her and decedent at her house on two occasions when he was visiting there, the one in the autumn of 1868 and the other in the month of January or February, 1869. The latter of these two interviews is the more important as it is doubtful whether the former alone was sufficiently definite to constitute a contract enforcible in equity.

This evidence was contradicted by the testimony of decedent’s' widow to the effect that he was at home ill in January and February, 1869, and did not go to the State of Ohio after the fall of 1868. Respondents also contend that the testimony of appellant’s mother was inconsistent with a letter written by his father and with certain letters of decedent to appellant’s parents, which were received in evidence. At this stage of the proofs appellant was called to the stand and testified, without objection or exception, that in J anuary or February, 1869, he saw his uncle at their house in Ohio. Thereupon counsel for plaintiff, objected to this evidence as incompetent, improper and inadmissible under section 829 of the Code of Civil Procedure. The court sustained the objection and struck the evidence out, saying that it called for a personal transaction within the meaning of, the Code. To this ruling appellant’s counsel excepted. We think this, evidence was competent. It was no part of any conversation or personal transaction with decedent. (Cowan v. Davenport, 30 App. Div. 130 ; Greer v. Greer, 58 Hun, 251; McKenna v. Bolger, 37 id. 526; 49 id. 259; Pinney v. Orth, 88 N. Y. 447 ; Abbott’s Sel. Cas. Ev. 227 ; Boyd v. Boyd, 164 N. Y. 234; O'Brien v. Weiler, 140 id. 281; Walsh v. McArdle, 78 Hun, 415 ; Oliver v. Freligh, 36 Hun, 633; Matter of Brown, 38 N. Y. St. Repr. 130; Matter of Callister, 153 .N. Y. 294, 307; Lewis v. Merritt, 98 id. 206; Wing v. Bliss, 8 N. Y. Supp. 500.) It was relevant and material as it tended to contradict the testimony of decedent’s-widow and incidentally to corroborate the testimony of appellant’s, mother to the extent that testator was at her house and an opportunity was afforded for the interview narrated by her. (McKenna and Boyd Cases, supra ; Tomlinson v. Seifert, 2 N. Y. St. Repr. 287.)

The decision contains a specific finding that decedent visited appellant’s parents in the fall of 1868, and as to what took place between them at that time, but there was no finding that he was there again in' January or February, 1869, as testified to by appellant’s mother, although the decision purports to recite the entire history of events leading up to appellant’s coming to live with his uncle. The court found that no contract by which appellant was to share in. decedent’s property was made. It thus appears that the evidence erroneously excluded had an important bearing upon the material issue in the case, and if retained and considered it might • have induced belief in the testimony of appellant’s mother as to the second interview and have led to a finding in favor of appellant.

For" this error the judgment appealed from should be reversed,, and a new trial ordered, with costs to appellant to abide the event.

All concurred, except Adams, P. J., and Williams, J., who dissented.

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