
    Nathan Crawford, Adm’r, etc., App’lt, v. Mary E. Haines, Resp’t
    
      Supreme Court, General Term, Third Department,
    
    
      Filed May 24, 1887.
    
    Evidence—What not incompetent within Code Civ. Pro., § 829.
    This action was brought to recover among other things money belonging to the intestate, and alleged to have been converted by the defendant. The testimony showed that a debtor of the intestate made a payment of money in the presence of the plaintiff and defendant by laying it on a table before her. The plaintiff upon his direct examination as a witness in his. own behalf, was asked whether at that time the defendant made any disposition of the money, and if so, what ? Held, that the plaintiff, as a nonparticipating witness of a transaction which took place between the intestate and defendant, was not incompetent to testify within Code Civ. Pro., § 829.
    Appeal from judgment in favor of defendant entered upon report of referee.
    
      The plaintiff among other things sought to recover of ■defendant $485, which the complaint alleged belonged to his intestate, and which coming into the possession of the defendant, she converted to her own use. The referee found that no demand had been made of the defendant before action brought, and reported in favor of the defendant. The only question urged upon appeal is stated in the opinion.
    
      N. P. Hinman, for app’lt; J. H. Clute, for resp’t.
   Landon, J.

The intestate Hannah Crawford was the mother of these parties. The defendant resided with her. One Covenhoven owed the intestate $485, and paid her the money at her house by laying the same upon a table before her, in the presence of both plaintiff and defendant. These facts having been testified to upon the trial, the plaintiff, upon direct examination as a witness in his own behalf was asked, “Can you state whether after that payment was made by Covenhoven, Mary, the defendant, made any disposition of that money, and if so, what ?” His counsel stated that the purpose of the question was to prove that the defendant took the money and put it in her bed-room. The defendant objected, that what was done there must have been done by the consent and direction of the intestate, and that the plaintiff is incompetent under section 829, Code C. P. The objection was sustained, and the plaintiff excepted. We think this was error. If the defendant took the money and put it in her bed-room this may have been a transaction between the defendant and the deceased, but the case does not show that it was a transaction between the witness and the deceased. As the case stood he was merely a passive an non-participating witness of the transaction, and therefore not within the exclusion of this section of the Code. Simmons v. Havens, 101 N. Y., 427; Cary v. White, 59 id., 336.

We are referred to Holcomb v. Holcomb, 95 N. Y., 316, as authority for the ruling. The court there says, that any transaction with the deceased in which the witness in any manner participated, is excluded. There is no evidence here that the witness did in any manner participate. The sole evidence given upon this subject was, that he also was present when the money was paid by Covenhoven. The testimony called for, relates to the action of the defendant. It is possible that plaintiff’s further examination would have shown his participation, but we do not know.

As it was, his testimony was competent, and for aught we know might have established the conversion, the failure to prove which, defeated the plaintiff.

The judgment must be reversed, the reference discharged,, a new trial granted, costs to abide the event.

Learned, P. J., and Mayham, J., concur.  