
    Louise C. Adenaw, as Executrix, etc., of M. Emeline McMillan, Deceased, Plaintiff, v. Pauline A. Piffard and D. Halsey Piffard, Defendants.
    Fourth Department,
    March 9, 1910.
    Evidence — claim against estate—transactions with decedent — waiver of protection of section 829 of the Code of Civil Procedure — counterclaim arising out of same transaction — breach of contract before time of performance.
    Where an executrix substituted as plaintiff in ah action brought by her testatrix to recover possession of personal property delivered to the defendants, who assert a parol agreement by the testatrix that the property should become theirs on her death, reads in evidence a deposition made by the testatrix, taken when she was ill and unable to attend the trial, showing that she delivered the property to the defendants under some parol agreement, but that they failed to return it on demand, the bar of section 829 of the Code of Civil Procedure is waived, and the defendants may testify as to the parol agreement alleged in their answers.
    Where the deposition introduced by the plaintiff xdid not relate 'to a single transaction between ,the parties, but to a series of transactions, the way is opened to the defendants to give evidence as to all of them.
    A counterclaim based on a breach of the agreement by the testatrix that the property should belong to the defendants on her death, and that she would leave them certain property by will, arose out of the same transaction as that on which the plaintiff’s action is founded, and is available to the defendants undet section 501 of the Code of Civil Procedure.
    Although the property was not to belong to the defendants until the death of the testatrix, they can assert a counterclaim for a breach of such contract while the testatrix was living if she repudiated it-by refusing to carry it out. McLennan, P. J., and Kbuse, J., dissented, with opinion.
    Motion by the plaintiff, Louise O. Adenaw, as executrix, etc., for. a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the ffrst instance, upon the verdict of a jury in favor of the defendants after a trial at the Livingston Trial Term in May, 1909.
    
      Kidder M. iSoott and Edwin A. Kash, for the plaintiff.
    
      John F. Connor, for the' defendants.
   Williams, J.:

The plaintiff’s exceptions should be overruled and the motion for a new trial denied, with costs.

The action was brought in the lifetime of plaintiff’s testatrix to recover possession of personal property.

The defendants were husband and wife, and by separate answers denied that the testatrix was entitled to the possession of the property, and set up an agreement by parol whereby the testatrix agreed among other things that the property sought to be recovered should be put in defendants’ house, and remain there during the lifetime of testatrix, and at her death should become the property of the defendant Mrs. Piffard, and to leave to her by will real estate in New York city or cash or securities of the value of such real property, alleging breach by testatrix of the agreement and damages. The plaintiff replied to this defense denying the agreement alleged, setting up the agreement she claimed was made, a breach thereof by Mrs. Piffard, etc. The reply was served in October, 1906. Testatrix died in October, 1907. Plaintiff was substituted in June, 1908, and the trial was had, as stated above,- in May, 1909.

First. As to the question raised under section 829 of the Code of Civil Procedure. After issue was joined, and, of. course, before the death of the testatrix, she being an invalid and liable not to be able to attend the trial, her evidence was taken out of court. Upon the trial the plaintiff read from her deposition so taken evidence that she delivered the personal property sought to be recovered at the residence of the defendants about June, 1898-1899 ; that the property had, theretofore, been in her, testatrix’s, possession for about fifteen years and she was the owner thereof when delivered to defendants, and had been for a long time prior thereto; that she demanded it of the defendants in the fall of 1903, before this action was commenced ; that they refused to deliver it to her; that at the time of refusal by defendants to deliver property to her, as requested, testatrix had never parted with the ownership of the same, nor mortgaged nor sold it; that it was removed to the residence of defendants from testatrix’s home, where it had been used as furnishing therefor.

The plaintiff then rested, and the defendants were called as witnesses and. testified to the defense set up by them in their answer, to the parol agreement with reference to the personal property and the real property in blew York city. All their-evidence was given under objection by plaintiff to its competency under section 829 of the Code of Civil Procedure. The defendants claimed that by the introduction of the evidence of the testatrix from the deposition the plaintiff had opened the door and rendered' -the evidence of the defendants as ,to the various interviews with her with reference to. the alleged parol agreement competent and proper.

It seems to me that the door was opened by plaintiff sufficiently to. admit this evidence of the defendánts. The testatrix, in her deposition, had testified that she delivered ' the property to the defendants; that she was- then the owner of it¿ had been in possession of it' for fifteen years; that at the time she demanded it of defendants she had never parted with the ownership of it nor mortgaged nor sold it." She had alleged in her" reply that she delivered the property to the defendants under an agreement, and this evidence was equivalent .to saying that in none of tlie transactions between herself and the defendants, with reference thereto- was any disposition made of the property to them. It was not the case of a .single interview being sworn to by a testatrix. It was saying that at no interview at any time had she disposed of ' any interest in the property to-the defendants. If she had testified to a single interview, the evidence of defendants would necessarily have been confined to that one, and evidence as to others have .been inadmissible. (Martin v. Hillen, 142 N. Y. 140; Rogers v. Rogers, 153 id. 343, and cases therein referred to.)

Nay v. Curley (113 N. Y. 575) was an action by administrators to recover a loan made defendant by their intestate.. The plaintiffs gave in evidence a.check made by and delivered to defendant by the intestate payable to his order, indorsed by" him, and upon which lie had received the money. This was claimed to have constituted the loan: The presumption from'this evidence would have been

that the check was given.in payment of a debt, and not as a loan. (Koehler v. Adler, 78 N. Y. 287; Poucher v. Scott, 98 id. 422.) In.order to avoid this presumption the plaintiffs called the defendant .as. their witness and asked him if at the. time lie received the check the intestate owed him anything, to which lie answered .no. A prima facie case of a loan was then made out. There was no presumption that the delivery of the check was a gift. (Grey v. Grey, 47 N. Y. 552.) The plaintiffs upon this proof rested their case. The defendant was then called as a witness for himself and asked what took place between the intestate and himself when the check was delivered. An objection was made under section 829 of the Code of Civil Procedure and this evidence was excluded. The Court of Appeals held that while the defendant was not permitted to give the evidence unless the plaintiffs had opened the door, yet by their examination of defendant and proof that the intestate was not indebted to him, they had so opened the door. It will be seen that plaintiffs’ proof did not directly show any personal transaction between the parties. It merely rebutted the presumption as to the nature of the transaction which existed before defendant’s statement as to indebtedness was made. ■ The court held that by giving this proof the plaintiffs in effect gave proof as to the transaction between the parties when the check was given and opened the way to defendant to testify to what that full transaction was that the plaintiffs by giving the proofs they did showed that the transaction was hot a payment of debt, but by eliminating this element characterized the transaction as a loan ; that the form of the question did not matter inasmuch as it in substance called for an' affirmance or negation as to the character of the transaction.

In this case the property was concededly delivered by the intestate to the defendants under some agreement, by parol, made between the parties. By the issue raised in the pleadings the question was raised as to the nature of that agreement. The plaintiff proved by the evidence of the testatrix that she had never in any way parted with the ownership of the property, never mortgaged nor sold it. In giving this evidence she characterized the transactions between herself and the defendants in which the parol agreement was made, and by so doing the door was opened to the defendants to testify fully to the nature of such transactions. The same principle seems to be here involved that was' decided in Nay v. Curley (supra). This ■ agreement was made, not in a single transaction between the parties, but in a series of transactions^ and the evidence of the plaintiff, being as it was general, related to all the various transactions and opened the way to defendants to give evidence as to all of them.

I- do not deem it essential to analyze the several cases cited by counsel, but call attention to Potts v. Mayer (86 N. Y. 302); Cole v. Sweet (187 id. 488) Tooley v. Bacon (70 id. 34).

Second. The other points made by the plaintiff are not well taken. ■

1. The1 counterclaim set up by the defendants arose, out of the same transaction which was the basis of the plaintiff’s claims, and was directly connected with the subject of the action. It' was, therefore, available under section 501 of the Code of Civil Procedure. (Ter Kuile v. Marsland, 81 Hun, 420; Empire Feed Co. v. Chatham Nat. Bank, 30 App. Div. 476; Cooper v. Kipp, 52 id. 250, and cases therein referred to.)

2. We think the counterclaim maintainable, though plaintiff’s testatrix was living when the action was commenced. She having refused to carry it out repudiated it. (Schell v. Plumb, 55 N. Y. 592.)

3. There seems to have been an adequate consideration for the agreement. ■ •

All concurred, except MoLeeeae, P. J., and Kruse, J., who dissented, in an opinion by McEekear, P. J.

McLennan, P. J. (dissenting):

The action was commenced on, the 26th day of April, 1906, by M. Emeline McMillan, to recover the possession of certain chattels described in the complaint of the agreed value of $2,215.70, alleged to be the property of the plaintiff, and to have been wrongfully detained by the defendants. It is alleged in the. complaint that before the commencement of the action said plaintiff demanded the ■ possession of said property, Which was refused. Judgment" was demanded that the possession of the chattels described in the complaint be awarded to the plaintiff ; that the value thereof be fixed at $2,215.70, which was subsequently conceded, to be paid by the defendants to the plaintiff if possession of the same was not delivered to her.

The defendants, who are husband and wife, answered. separately, each denying that Mrs. McMillan was entitled to the possession of the chattels in question because of an oral agreement alleged to have been made between her and the defendant Pauline A. Piffard eight years before the éommencement of the action, by which it is alleged that said Pauline A. Piffard agreed to purchase the Piffard homestead at Piffard, H.‘ Y., establish therein a home for herself, her family and Mrs. McMillan, and maintain the same during the lifetime of Mrs. McMillan; to set aside certain rooms in said home for the exclusive use of Mrs. McMillan and her maid, furnish heat, light and suitable board for herself and maid, furnish feed for her horses at cost, and that Mrs. McMillan, Mrs. Piffard and her family, during the lifetime of Mrs. McMillan, should live together in the Piffard homestead as one family.

It is alleged that by such agreement Mrs. McMillan agreed to place and leave in said home certain articles of property and furniture she then owned and possessed, the same to be left and to remain in said house for the use therein of Mrs. Piffard and her family and Mrs. McMillan during her lifetime, and that at the death of Mrs. McMillan said furniture and property should become the sole property of Mrs. Piffard.

It was also alleged that Mrs. McMillan agreed that she would pay towards thé maintenance of said home for board, rooms and home privileges for herself and maid, stabling for her horses and barn for her carriages, $100 a month for at least eight months of each year, and $100 a month for such time each year as Mrs. McMillan should stay at home in excess of eight months.

It is further alleged in defendants’ answers that Mrs. McMillan, in consideration of said agreement to be kept and performed by the defendant Pauline A. Piffard, and in consideration of certain prior services rendered to Mrs. McMillan by Mrs. Piffard, agreed to leave Mrs. Piffard by will a certain interest in a part of real estate situate on the east side of Broadway* in the city of Hew York, of the value of $47,833, and it is alleged that the agreement was that in case Mrs. McMillan should sell or otherwise dispose of her interest in said real estate, or for any reason fail to leave her aforesaid interest to the defendant, then she would leave the defendant by will an amount in cash or securities equal in amount to the value of Mrs. McMillan’s interest in said real estate.

It is further alleged in the answers that pursuant to the provisions of the aforesaid alleged agreement the defendant Mrs. Piffard purchased the Piffard homestead and in all respects carried out and performed "the agreement bn her part. It is then alleged that Mrs. McMillan on or about the 1st day of June, 1899, pursuant to the provisions of. said agreement, placed or left in said home in the possession of the defendant the property and furniture aforesaid, including the articles mentioned.iu the complaint, and that said articles have since remained in the possession of the defendant, and that by virtue of her rights, -interest and special property in said chattels she is. lawfully entitled to. the possession thereof. .

Fora second defense and counterclaim the defendant Pauline A. Piffard, realleging the above facts, alleged that Mrs. McMillan* the plaintiff* had failed and neglected to keep and perform the said agreement on her part, had removed or caused to be removed from said home certain of the aforesaid property and furniture of the value of $1,200, and although requested by the defendant to carry out and fulfill- the provisions of "said agreement, that the plaintiff, Mrs. McMillan, had wholly neglected and refused to comply with the provisions of said-agreement and had denied and repudiated said agreement to the damage of the defendant in the sumí of $60,559.

The then plaintiff, Mrs. McMillan, served a reply to such answers in which she admitted, in substance, the agreement whereby the said defendant' agreed to furnish board and accommodation to plaintiff and her maid at her'home in Piffard, M. Y., and the use of her stable and barn for the care of plaintiff’s team, carriages and harnesses, at the agreed and stipulated price of $100 a month. It is alleged that it was. further stipulated that the inaid employed by the plaintiff, when her duties and services were not required by the plaintiff, should assist in the work incident to the home of the said defendant, free of charge; also, that the plaintiff should employ and pay for the services of a coachman to drive-such team and care for same and the carriage and harnesses belonging to such outfit; to pay for the food and provision of said team at the actual cost thereof, and it is alleged that it was further agreed that in consideration of the furnishing of said team with pasturage, hay and straw, free of charge, by the defendant, she was to have the services of such coachman and team, carriage and harnesses, free, of charge, at all times when plaintiff should not require the same for her own use and en joyment.

■ The plaintiff in her reply denies that she ever made or entered into any agreement with the defendants, or either of them, to the effect that the property which this action was brought to recover should belong to or become the property of the defendants upon her death.

Plaintiff further alleged that the said defendant Pauline A. Piffard did not keep her agreement as to providing a suitable home for the plaintiff; that she and her husband studiously ill treated, insulted and misused her and to such an extent that she was forced to leave the home which they had assumed to provide for her.

In such reply it is further alleged that so far as the counterclaim alleged as a defense to the cause of action relates to the alleged agreement of the plaintiff to make testamentary or other disposition of her interest in the real estate or the avails or proceeds thereof, it did not accrue before the commencement of the action and was, therefore, not available as a defense.

The issues thus joined were, first, were the defendants entitled to retain possession Of the chattels in question because bf the alleged. agreement made in respect thereto by Mrs. McMillan, to wit, the agi’eement on her part that at her death such chattels should become the absolute property of the defendant Pauline A. Piffard; and, second, was the agreement alleged to have been made in respect to the disposition of the real estate of the plaintiff, or its value, available to the defendants at the time their answers were served because the contingency which by the terms of the alleged agreement, to wit, the death of Mrs. McMillan, had not arrived %

After the service of such answers and the reply of Mrs. McMillan, who was an old lady past seventy years of' age, and an invalid, and whose death was expected, she was examined upon commission' for the purpose of preserving her testimony. Upon such examination she testified, in substance, that the. property and chattels, for the possession of which this action is brought, were owned by her; that she was entitled to their possession; that she had never transferred or conveyed her interest in them to the defendants or either of them.

■ Sometime after such evidence was given, Mrs. McMillan died and her executrix was substituted as plaintiff in this case. When the case finally came on for trial the plaintiff read in evidence the testimony given by Mrs. McMillan, taken upon the commission, substantially to the effect above indicated, and rested. The executrix had thereby established prima facie a cause of action.

The defendants were then permitted to testify, over plaintiff’s objection and exception, as to the agreement alleged to have been made between them and Mrs. McMillan, substantially as set forth in their respective answers. Such evidence and all of it was objected to because inadmissible and incompetent under section 829 of the .Code of Civil' Procedure; and the first question presented by this appeal is whether or not such objection was well founded.

I am inclined to concur with brother Williams in the proposition that the plaintiff having read in evidence the testimony of her testatrix to the effect that she, such testatrix, was the owner of the chattels in question; that she had title to the same and had in ho manner parted with such title to the defendants .or otherwise, such defendants were entitled to testify in effect that the testimony of such testatrix was untrue because of the agreement which, as they alleged, was' entered into between them" and her, to wit, that it was agreed that such chattels should be the absolute property of the defendants upon the death of such testatrix, and if such evidence was believed by the jury, of course it would have defeated plaintiff’s alleged cause of action.

But the defendants did nót stop. there. They were permitted, over plaintiff’s objection and exception, to.establish their counter-, claim about which the testatrix had not been examined and had given no evidence, and which involved the proposition that the testatrix had agreed that the defendants upon, her death should be éntitled to a conveyance of her interest in her Ñew York real estate of the value of $47,833, or in case such real estate had been transferred by the testatrix prior to her death, of a sum of money equal ■ to such value, and as a result of such testimony so" given by defendants over plaintiff’s objection, the jury rendered a verdict in defendants’ favor for the value of the interest in such real estate and the interest thereon since the death of Mrs. McMillan,* which amounted to $53,603.72, and the total judgment so rendered, which included the value of the personal property which had been removed and the interest thereon, amounted to $55,818.92.

I conclude that, assuming the defendants were competent witnesses to prove that a contract had been entered into respecting the title to the personal property, which was the subject of the action brought by Mrs.- McMillan, and to establish that by reason of such oral contract she had divested herself of such title, such defendants were not competent witnesses to establish an alleged counterclaim which practically absorbed the greater part of the estate of the testatrix.

As before suggested, the plaintiff had given no evidence ^respecting such alleged counterclaim. She had not been interrogated as to whether or not she had orally agreed that the defendants upon her death should become entitled to receive between $50,000 and $60,000 of her estate. Her allegation and the whole of her evidence was to the effect that the personal property, the possession of which she was seeking to recover, was owned by her—belonged to her; that she had never transferred or assigned it to the defendants, and, therefore, that she was entitled to its possession.

Assuming, as I have said, that such defendants had a right to controvert that proposition and to show that they were entitled to its possession by reason of an oral agreement which the jury has found existed, does it follow that notwithstanding section 829 of the Code of Civil Procedure, because she gave such testimony relating to such personal property, the defendants are at liberty by their unaided testimony, to establish a counterclaim based upon the proposition that .the testatrix also agreed orally that they should be entitled to receive between $50,000 and $60,000 of her estate upon her death 2

If such is the law, it is indeed a very serious thing for a plaintiff to bring an action in his lifetime to recover the possession of personal property, no matter how trivial its value, and to testify upon commission in anticipation of his death that he was the owner of such property and had never transferred title to the person having possession of the same, because such defendant may allege an agreement with the then deceased owner of the property to the effect not only that by such agreement the title to the property became vested in the defendant, but also because as a part of such agreement the deceased agreed that such defendant should become entitled to a substantial part of his estate or property upon his death.

It seems to me that if section 829 of the Code is to be given any substantial force or effect, it ought at most only to be held that the defendants in'this casé were at liberty to disprove the agreement testified to by the" déceas'ed so far as it affected the property in question, and that they Should not have been permitted to give evidence as to a personal transaction with the deceased, involving a substantial part of her éstate and about which she had given no testimony, and in reference to which she had not been interrogated.

Hot only were the defendants permitted to give evidence tending to establish that the deceased had orally agreed to transfer to them her interest in the Hew York real estate, or its value, but they were permitted, over plaintiff’s objection, to give evidence of transactions alleged to have been had with the deceased which would tend to corroborate the fact that such agreement was made. Pauline A. Piffard thus testified that some years previous she had drawn a will for the deceased, and was permitted to give its contents,- which testimony could have been given only for the purpose'of showing that the alleged contract as to the disposition of the Hew York property was probably made.

In the case of Martin v. Hillen (142 N. Y. 140) it was said ' (p. 144): “ But he [the defendant] could not explain, impair or contradict the plaintiffs’ version by means of another and independent personal transaction or communication between himself and the deceased. The contention of the defendant’s counsel is that the defendant could testify to any fact or circumstance that concerned the transaction testified to by the plaintiff, and any new or independent personal transaction between the defendant and the deceased that tended to contradict it, or show that it could not have Occurred, was evidence of that character and admissible. We think that such a construction of § 829 is not permissible. The words £ concerning the same transaction or communication ’ Were inserted in the section for the very purpose of rendering such a construction impossible. It would open the door for the admission of all the evils which the section was intended to prevent and would go far towards repealing it entirely, since the testimony of the executor or administrator bringing the action, in Ms own behalf, to a single distinct personal transaction or communication, would open the way for the adverse party to testify to any other personal transaction or comma- . nieation, or to any number of them, upon the ground that they .tended to explain'or contradict the single transaction or-.communication given in evidence by the plaintiffs. This would practically defeat the purpose which the Legislature had in view.”

I think also that there was no consideration for the agreement which is the basis of defendants’ counterclaim in this action. By the terms of the alleged agreement entered into between the deceased and the defendants,' provision was made for ample payment by the deceased for all services rendered to her. Her. board and that of her maid, the care of the horses, wagons and coachman were all provided for by the terms of the oral agreement. It is not suggested that the payments so agreed to be made by the deceased were not ample for the services rendered, and I think it cannot be determined, even construing the evidence of the defendants, most favorably to them, that there Was any consideration for' the alleged agreement on the part of the deceased to will or transfer to them upon her death property of the value of- between $50,000 and $60,000.

Finally, I conclude that the defendants did not establish their alleged counterclaim by such proof as would entitle them to recover under the rule as laid down by the Court of Appeals in Hamlin v. Stevens (177 N. Y. 39).

I conclude that the plaintiff’s exceptions should be sustained and a new trial granted, with costs to the plaintiff to abide the event.

Kruse, J., concurred. '

Plaintiff’s exceptions overruled. Motion for new trial denied, with costs, and judgment directed for the defendants upon the verdict, with Costs;  