
    George H. Eckert, Plaintiff, v. John S. Eckert and Others, Defendants.
    
      Conversations with persons since, deceased—a witness whose dower interest is at stake and who. took'part in the conversation, is incompetent.
    
    In an action- brought to procure the partition of a farm to- which the defendant • claimed title under a paroi contract made with his parents, the deceased own-, ers, the testimony of the defendant’s wife, whose inchoate dower right would be increased twofold by her husband’s success, as to- a conversation between her husband and his parents, which tended to support the alleged- agreement, andi-in which she herself took part, is hot competent evidence, and its admission is a violation of section 829 of the Code of Civil Procedure.
    Motion by the plaintiff,'George H. Eckert, for a' new. trial upon a case containing exceptions, ordered to be heard at the General. Term in the first instance upon the verdict of a jury ih favor of the defendant John S. Eckert rendered after a trial" at the Cayuga Circuit on the 9th day of May, 1895.
    This action is brought to partition certain premises, consisting of a farm situate in the town of Throop, in the county of Cayuga, the title to which was held jointly by Solomon P. Eckert and Eliza,'his wife, who were the grandparents of the plaintiff, and the parents of the defendant John S'. Eckert, áhd both of- whom died before the commencement of this action.
    The plaintiff, in his complaint, alleges that he is the: owner of an undivided one-half interest in the premises, as tenant in common with his uncle, John S. Eckert, but the defendant avers that, at the time Of the death of. liis parents, he was ih possession of the premises in question, claiming title to-the same under a paroi contract alleged to have been made between-him.and his father and mother during their lifetime, by the- terms of which it. was agreed that if he would remain upon the farm and work it and take care of his parents until the death of the survivor of them, the farm should he his. In his answer he alleges due performance of such contract upon' his part and insists that, in consequence thereof, he became the owner of the entire, premises.
    The issue thus raised was tried before a jury, and the defendant had a verdict in his favor.
    
      Teller & Hunt, for the plaintiff.
    
      Wright & Cushing, for the defendant John S. Eckert.
   Adams, J.:

The sole question presented for our consideration upon this motion relates to the competency of the evidence of the defendant’s wife, Anna L. Eckert, who was called as a witness in behalf of her husband, and was permitted, to testify to a conversation which she claims to have overheard between her husband and his parents some twenty years prior to the trial, and which, if true, tended very strongly to support the contract upon which the defendant rests his claim of title.

This witness, upon being asked to relate the conversation, was, before being permitted to do so, subjected to a preliminary .examination by the plaintiff’s counsel, in which she said that the only persons present during the interview were her husband, his father and mother, and herself. She was then asked who took part in the conversation, and replied: “ My husband, and his people.” The following questions were then put to her: Q. What were you doing at that time? A. I presume I said something. Q. Took part in the conversation ? A. Tes, sir.”

The counsel for the plaintiff then objected to the evidence sought to be obtained from this witness upon the ground that it involved a transaction between a deceased party and the defendant, in which the witness, who is the defendant’s wife, and has an interest in the action, participated. The objection was overruled, to which ruling an exception was duly taken.

The witness, thereupon testified: They said they didn’t want him to go. They wanted him to stay there, and if he would stay there they would give him the place. He was to have the place if he would stay there and take care of them as long as they lived. My husband said he would stay. He has staid ever since. * * * His father did the talking, mostly. I don’t remember' what I said. ■* * * If I said anything it was that I wanted to go. I know I have said that. * * * I didn’t remembér whether at that time I said I would not stay, but probably I did.”

At the conclusion of the witness’ examination the plaintiff’s counsel moved to strike out so much of her testimony as related to the conversation between her husband and his parents, upon the same ground as before stated, which motion was denied, and to the decision of the court the counsel again excepted.

We are clearly of the opinion that error'was committed by the learned trial justice in admitting the evidence of this witness over the objection of the plaintiff’s counsel and in refusing to strike out the same after it had been received. - Mrs. Eckert is not only a party to the action, but she is directly interested in this result, for,' if her husband is able to maintain his- contention, he establishes his title to the entire premises sought to be partitioned, instead of to an undivided one-half interest therein as tenant in common with the plaintiff. It is obvious, therefore, that his wife’s inchoate dower right in the premises will be increased two-fold by her husband’s success. •

And this interest is sufficient to disqualify her as a witness against the plaintiff to any conversation or transaction with deceased parties from whom both parties to the action claim' to- have derived their title. (Erwin v. Erwin, 54 Hun, 166; Hoffman v. Hoffman, 18 N. Y. Supp. 387.)

It is insisted, however, that, even conceding the witness’ interest, she was, nevertheless, a competent witness for the reason that she was detailing a conversation between her husband and his father, in which it is claimed she did not participate,, and the attention of thej court is directed to the case of O’Brien v. Weiler (140 N. Y. 281)) as authority for the defendant’s contention. We think, however, that it is not difficult to distinguish that case from the one under consideration. In the case cited, the witness testified to an interview between a father and his daughter, of which she was a silent auditor; and it was apparent that the transaction detailed by the witness was in no wise .participated in by her, as the interview related to a matter between the father and daughter with which the witness had little, if any, concern ; but here Mrs. Eckert was manifestly quite as much interested in the conversation she attempted to relate as was her husband. And, although upon being recalled to the stand, she stated that she did not participate therein, such statement was virtually nothing more than her own conclusion, which was subsequently somewhat modified upon cross-examination by her admission that what she had testified to on the day previous was true. Indeed, it is scarcely credible, when we consider the interest which this witness had in the subject-matter of the conversation between her husband and his father, and which confessedly involved her remaining upon the farm contrary to her own desire, that she did not give expression to her wishes, and thus to some extent, at least, take part in the conversation.

It is impossible to read her evidence without being impressed with the belief that the declarations testified to were directed to the witness just as much as to her husband, and this being so, the case comes directly within the letter, as well as the spirit, of section 829 of the Code of Civil Procedure. (Matter of Will of Dunham, 121 N. Y. 575; Matter of Bernsee, 141 id. 389; Ditmars v. Sackett, 92 Hun, 384.)

Obviously the evidence of Mrs. Eckert- must havé had great weight with the jury, as she was the -only-witness sworn'as to the interview upon which the defendant rests his contention, and its admission cannot, for this reason, be treated as a harmless error and one which may be disregarded upon this motion. The motion for a new trial is, therefore, granted, with costs to abide the event.

All concurred.

Exceptions sustained and a new trial ordered, with costs to abide the event. .  