
    Charles S. Ellis, Resp’t, v. Mart E. Filon et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 12, 1895.
    
    Witness—Section 829.
    Where, on the trial of a disputed claim against a decedent’s estate for preparing plans for a building, the claimant testified that he drew the-plans, that they were reasonably worth a certain sum and that he would, not have drawn them without being requested by some one, a further statement by him that he had conversations with decedent “about these-plans,” is inadmissible under section 829 of the Code.
    Appeal from a judgment in favor of plaintiff.
    
      Cassius C. Davy, for app’lts ; Eldridge L. Adams, for resp’t.
   Ward, J.

This appeal comes here under section 2718 of the Code as amended in 1893. The plaintiff, within the six months for presenting claims against the estate of the deceased, presented a claim of $300 for the plans prepared by the plaintiff at the request of the deceased for the construction of a building in Rochester. The claim was rejected by the appellants, and an order was made-referring it to a referee under this provision of the Code, who heard the evidence, and reported in favor of the plaintiff for the amount of his claim, upon, which judgment was perfected, the referee awarding costs to the plaintiff. Upon the trial the plaintiff was sworn in his own behalf. He testified that he was an architect doing business at Rochester; that he drew the plans; that he did not have them ; that the last he saw of them they were in the office with Mr. Filón (the deceased), in June, 1892 ; that the plans were reasonably worth one per cent, of the estimated cost of the building, which he specified. Then he stated as follows ;

“I made the preliminary sketches. Mr. Putnam, who was with me at the time, completed the details. No one else in the office, except myself and Mr. Putnam, to my knowledge, worked on these plans. I had a conversation with Mr. Filón about these plans. It was either in Mayor June, 1892. I had more than one conversation ; several; three or four, I should think. Q, Did you draw these plans without being requested to do so by any one? (Objected to by defendants as calling for a transaction or communication between the witness and Michael Filón, and as incompetent under section 829 of the Code, it appearing that the ■witness is interested in the event of the action, and also that the question is improper in form and leading. Overruled, and exception.) A. No, sir. (Defendants’ counsel moved to strike out the answer as incompetent under section 829 of the Code. Motion denied, and exception.)”

The witness further stated that none of his conversations with Mr. Filón were in the presence of any other person, except one instance. It was, after this conceded that Michael Filón died in July, 1893. The only other witness was Mrs. Putnam, the wife of the person who worked with the plaintiff on the plans. She says that she saw them at her house, and on the bottom of the plans there appeared the words, “Sketch for Mr. Michael Filón.” The plaintiff gave no other evidence, except the will of the deceased, which was objected to, the twentieth clause of which provided that the executors were authorized and directed to erect on Main street, in Rochester, a building costing not less than $1,000,-000, to be known as the “Filón Block.” The plaintiff rested, but, after resting, resumed the case,-and moved to amend his claim to -conform to the proof, thus opening his case. This was denied, and the defendants then moved to strike out evidence on the ground that it involved a personal transaction with the deceased: First, the plaintiff’s testimony as to the value of the services. No objection appears to have been made to this, but the motion was denied. Defendants excepted. ' Second. What the witness Ellis testified to in reference to his having conversation with deceased about the plans. Plaintiff objected to this, on the ground that no objection was made at the time, and the motion was made after the close of the plaintiff’s case. This was denied, and the defendants excepted.

The grounds on the defendants’ appeal are: First, that the evidence as a whole fails to show any cause of action against the defendants, or any request on the part of' the deceased to the plaintiff to make the plans, or facts from which such request might be inferred; and, second, that the referee erred in receiving evidence forbidden by section 829, and also in not striking out such evidence.

It clearly appears that much of the plaintiff’s evidence comes within the spirit, if not the letter, of the prohibition of section 829, and, if this judgment is sustained at all, it must be upon such evidence. From the opinion of the referee, and the proceedings on the trial, it is evident that the plaintiff was making a constant struggle to maintain his case by proving his personal transactions with the deceased, and he claims upon this appeal that enough of this forbidden evidence was obtained without proper objection to sustain the referee’s report. “Claims withheld during the life of .an alleged debtor, and sought to be enforced when death has silenced his knowledge and explanation, are always to be carefully scrutinized, and admitted only on very satisfactory proof." Kearney v McKeon, 85 N. Y. 139, 140 ; Ulrich v Ulrich, 42 St. Rep. 216, and cases cited. The referee finds that this work was done for the deceased by the plaintiff, and at the request of the deceased, and upon his promise to pay. We are to assume that the referee in reaching these conclusions attached importance to all the evidence given. At least, we cannot say that any of the evidence was not deemed by him material. The evidence that was •objected to in time was the question whether the plaintiff would have drawn the plans without' being requested to do so by any one. This, in connection with the evidence that had just before that been given, that the plaintiff had had conversations with the deceased “about these plans,” was intended to leave the inference to be conveyed by the witness that the request came from the deceased. The respondent claims that the proof of the fact of having had conversations, without showing what they were, was competent, and cites Hier v Grant, 47 N. Y. 278. That case does not aid the respondent, as appears by the syllabus : “That the simpie proof of the fact that a conversation was had with a deceased person without proof of the conversation itself is not obnoxious to * * * section 399, Old Gode, unless it may be a case where the mere fact of a conversation is a material thing to be proved.” It was very material for the plaintiff to show in some manner that the deceased recognized the service that the plaintiff claimed to be rendering him, and when, after stating that he had. conversations with the deceased about the plans, he then adds in effect that he would not have made the plans without being requested by some one to do it, it becomes important Standing by itself, it is a mere conclusion of the plaintiff’s mind, and is incompetent, and should have been rejected for that reason. In any aspect' of the case, the reception of this evidence was fatal. The motion to strike out the evidence as to these conversations should have prevailed, and while, perhaps, it was discretionary with the referee to have denied this motion, he should not have done so.

The referee seems to rely upon what the plaintiff testified to, that the plans were last seen by him in the office of the deceased. At no time does it appear that the deceased ever saw them. How they got there does not appear. If they were delivered to the deceased by the plaintiff, or through his agency, it was a personal transaction excluded by the Gode. Otherwise the evidence is of no importance as an admission by the deceased, or as an acceptance’ of the plans. If these plans were simply a “sketch,” as they were marked and submitted to the deceased for further eximination .or consideration, then the evidence does not aid the respondent. There was no motion to strike this evidence from the case, and it is there, although probably incompetent, with other incompetent evidence, for what it is worth; and we are confronted with the proposition that, in the face of the policy of the law as indicated in section 829, we must sustain this judgment upon this incompetent evidence. But assuming that full force is to be given to this evidence, as though it were competent, we do not think the findings of the referee are sustained by the evidence as to the plaintiff’s employment by the deceased, especially when judged with the scrutiny that such cases demand. Objection is also made to the referee’s direction that the plaintiff recover costs. We see no objection to this, if the judgment could otherwise be sustained. The referee found, as a matter of fact, that the payment of the claim has been unreasonably resisted by the defendants. This finding justified his conclusions as to the costs, under sections 1835, 1836, and 2718 of the Gode. The judgment must be reversed, and a new trial ordered before another referee, with costs to abide the event. All concur.  