
    Edgar E. Gambee and Others, Respondents, v. Millard F. Gambee and Others, Appellants, Impleaded with Others.
    
      Evidence as to conversations between a deceased person and a third party—when a witness, a party to and interested in the action, cannot testify to them.
    
    Persons parties to and interested in the event of an action, brought to set aside a deed upon the ground that the grantor was mentally incapable of executing it, are disqualified from testifying to conversations between the grantor, since deceased, and a third person, in which the witnesses themselves took any part, even though that portion of the conversations in which the witnesses took part is wholly eliminated from the testimony.
    Appeal by the defendants, Millard F. Gambee and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Seneca on the 21st day of May, 1895, upon the decision of the court rendered after a trial at the Seneca Special Term setting aside a deed made by Joseph B. Gambee, deceased, to the appellant Millard F. Gambee, upon the ground that the execution thereof was procured through fraud and undue influence imposed upon the said grantor.
    
      Frederick L. Manning, for the appellants.
    
      J. N. Hammond, for the respondents.
   Adams, J.:

The plaintiffs bring this action to set aside a deed executed by Joseph B. Gambee to his son, the defendant Millard F. Gambee, upon the ground that, at the time of its execution, the grantor was mentally incompetent to execute a conveyance of his property, and that while in this condition he was unduly influenced by the grantee.

Upon the trial, Susan A. Dey, a daughter of the grantor, was sworn as a witness in behalf of her co-plaintiffs, and testified to an interview between her father and mother, and to certain acts and declarations of the former, which tended to prove a very decided impairment of his mental faculties. This evidence was objected to by the defendants’ counsel'as incompetent under section 829 of the Code of Civil Procedure, but the objection was overruled by the court, to which ruling the defendants’ counsel duly excepted.

Thereafter, Mary F. Gambee, who was also a plaintiff, and the wife of Edgar Gambee, a son of the grantor, was called to the stand as a witness for the plaintiffs, and she, in like manner, over the defendants’ objection and exception, was permitted to detail a conversation between Joseph B. Gambee and his daughter, Mrs. Eliza Bainbridge, which took place in the presence and hearing of this ■witness. The character of this interview can best be understood by quoting briefly from the record. Mrs. Gambee testified: “ I was helping take care of Mr. Gambee and my husband came up and came in, and sat down by the sitting room stove. Mrs. Bainbridge and I were in the bedroom at the time, and my husband spoke, and Mr. Gambee asked who that man was, and Mrs. Bainbridge says, ‘ It is Edgar.’ ‘ Who is Edgar,’ he says. She smiled and says, ‘ Don’t you know your own boy, Pa ? ’ He hesitated. ‘ My boy ; I haven’t got any boys,’ he says. I says, ‘ Why, Pa, you have three boys.’ ‘ No, I never had any boys.’ ”

It is perfectly apparent from the evidence of these witnesses that they participated to a greater or less extent in the conversations which they severally attempted to narrate, and, although the learned trial court was careful to exclude any declarations made either to or by the witnesses, we are persuaded that the evidence, as a whole, was incompetent, for the reason that, within the rule as it is now settled,'the witnesses, who, as we have seen, were parties to the action and interested in its result, were actual participants in the transactions as to which they were permitted to testify.

It was at one time thought to be entirely competent .for a party interested, in the result of an action to testify to a conversation between a deceased party and a third person, which has taken place in his presence, so long as his testimony was limited to what was not personal between himself and the deceased. (Simmons v. Sisson, 26 N. Y. 264; Lobdell v. Lobdell, 36 id. 327; Cary v. White, 59 id. 336.) But this rule of evidence has been somewhat modified of late years.

To illustrate, in a case which is very frequently cited, it was held that the description by an interested witness of the acts of a deceased person, which tended to prove the insanity of that person, was within the inhibition of section 829, although the witness was a silent spectator of the acts which he had observed. (Holcomb v. Holcomb, 95 N. Y. 316.) And we believe it to be now well settled that such a witness is disqualified from giving evidence of an interview between a deceased party and a third person, where the witness took any part in the conversation, even though the portion of the interview in which he participated constitutes no part of, or is wholly eliminated from, his testimony. (Holcomb v. Holcomb, supra; In re Eysaman, 113 N. Y. 62; In re Dunham, 121 id. 575 ; In re Bernsee, 141 id. 389; Eckert v. Eckert, 13 App. Div. 490 ; Ditmars v. Sackett, 92 Hun, 384.)

This being- an equitable action, we should feel at liberty to disregard the error which was committed in the admission of the objectionable evidence to which reference has been made, were we able to satisfy ourselves that it worked no serious harm to the defendants; but, as has been stated, it bore with great directness and no little force upon the principal issue in the case, and it is impossible to say that it was not an important factor in influencing the mind of the learned trial justice to reach the conclusion he did.

We conclude, therefore, that justice requires the case to be retried.

All concurred.

Judgment reversed and a new trial ordered, with costs to the appellants to abide the event.  