
    Thomas A. Healy, Respondent, v. Janet T. Malcolm, as Executrix, etc., of James F. Malcolm, Deceased, Appellant.
    Evidence— the fact that a servant of a decedent is called to testify to a conversation, between such decedent and the plaintiff does not entitle the plaintiff to testify as against the decedent’s executrix.
    
    In an action upon a contract made by the plaintiff’s assignor with the defendant’s testator, the fact that a servant of the testator was called by the defendant to testify to an interview between-the plaintiff’s assignor and the testator, does not entitle the plaintiff’s assignor to testify to what took place at such interview.
    Appeal by the defendant, Janet T. Malcolm, as executrix, etc., of James F. Malcolm, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the-office of the clerk of the county of Hew York on the 6th day of July, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s 'office on the 2d .day of August, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    This cause of action was assigned to the plaintiff by one Charlotte F„ Tringham.
    
      Carlton B. Pierce, for the appellant.
    
      Philip M. Brett, for the respondent.
   Ingraham, J.:

The plaintiff seeks to recover under a contract made by the defendant’s testator, by which the latter agreed to pay $100 per week for the exclusive possession and use of “ said Beatty Cottage and stables and premises for the said period from June 1st to November 1st, 1900,” upon condition that the plaintiff’s assignor would provide the service and board and have the general care of the said premises during the said. period. It appeared that the defendant’s testator and his family took possession of the premises and continued in exclusive possession thereof under the terms, of the agreement until on or about the 11th of July, 1900, upon which, date the defendant’s testator died while in possession of and occupying the said premises with his family, and that shortly thereafter his family removed therefrom. The defendant alleges that the defendant’s testator engaged hoard for himself and family from the plaintiff’s assignor at and for the price and sum of $100 per week; that the defendant’s testator received and paid for board .under said .arrangement from the 1st of June, 1.900, to about July 17, 1900, when the arrangement wholly terminated.

.The plaintiff’s assignor testified that she had an interview with Miss Malcolm,- a daughter of the deceased, at which Mrs. Malcolm was present; that she told Miss Malcolm that she had no house, but would like to go to the seaside for the summer, and if Miss Malcolm wished it she (plaintiff’s assignor) would take a house for Miss Malcolm; that at a subsequent interview with the plain tiff’s assign ox, Mrs. Malcolm, the wife of the defendant’s testator, said that her husband' was an invalid and vei’y unwell, and was anxious to get into the country as soon as possible; that she wished plaintiff’s assignor to look for a house and report; that subsequently Miss Malcolm suggested that they should go to Spring Lake and Oyster Bay and see what houses could be had; that- the plaintiff’s assignor and Miss Malcolm went to Oyster Bay and to Spring Lake, looked at several houses, of which a house of a Mr. Beatty at Spring Lake was the most appropriate; that after this the plaintiff’s assignor, met the defendant’s testator for the first time, Mrs. and Miss Malbolm being present.; that subsequently she obtained a lease of the Beatty house for the term of five months, from the 1st of June, 1900, for $1,200. Miss Malcolm, the defendant, was called by the plaintiff and testified that the family occupied the premises until after Mr. Malcolm’s death.

The defendant' called a butler in the employ of the' defendant’s testator who testified as to the conversation between the plaintiff’s assignor and the defendant’s testator at the interview.in April;, that Mr. Malcolm there said that he would give $100 a week board ; that Mr. Malcolm’s family must have the entire second floor; that the plaintiff’s assignor asked how long Mr. Malcolm’s family would stay; that Mrs. Malcolm said that she could not say definitely, and that the plaintiff’s assignor said “ very well,” and offered to come up and assist in looking for a hew house in Hew York, and was willing to go us housekeeper; that “Mrs. Malcolm positively stated that she could not say how long they would stay, that the defendant’s testator’s family might have to come back at any time. In rebuttal the plaintiff’s assignor was again called and was asked to state the conversation between herself and the defendant’s testator at this interview about which the butler-had testified. That was objected to by the defendant, which objection was overruled, and that exception presents the main question to be determined on this appeal.

We think it clear that the witness was not competent to testify to this transaction between herself and the deceased. By section 829 of the Code it is provided that upon the trial of an action a' party or person interested in the event, or a person from, through or under whom, such a party or interested person derives hjs interest or title, by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest against the executor of a deceased person concerning a personal transaction or communication between the witness and the deceased person. The only exceptions to this prohibition are where the executor or administrator of the deceased person is examined in his own behalf, or the testimony of the deceased person is given in evidence concerning the same, transaction or communication between the witness and the deceased person. Heither of these exceptions existed in this cáse. The executor of the decedent was called as a witness for the plaintiff, but was not examined by the defendant as to any communication between her father and the plaintiff’s assignor. The testimony of the butler as to the interview between the plaintiff’s assignor and the defendant’s testator was not within the exception allowed by the statute. He was a third party, not a party to the action and not interested in the controversy.

This question was presented in the case of Pinney v. Orth (88 N. Y. 447). In that case, as in this, there was a third party at the interview between the deceased and the surviving party who testified as to whát took place, and the court held that the surviving party was not competent to testify as to transactions between himself and the deceased. This case'is cited with approval upon this point in Matter of Callister (153 N. Y. 294), and Boyd v. Boyd (164 id. 237).

,The parties,.however, have requested a determination of the question as to whether under the testimony in this case there was any engagement of the defendant’s testator to occupy these premises for any particular time. The allegations of the complaint are that the defendant hired the room and accommodations iu this house and stable from the first of June to the first of November during the period of the lease, and we think, considering all the circumstances,, that it was a question for the jury as to whether that was not the-intention of the. parties. This was not a ease where the plaintiff,, being the owner or occupant of a house, agreed to board the defendant’s testator and his family for an indefinite period, but a case in which the plaintiff’s assignor, at the request of the defendant’s testator, leased a house for a specific time for the purpose' of furnishing the defendant’s testator and his family with board at an agreed price per week. It could not be assumed to have been within the-contemplation of the parties that where a person had thus, at the-instigation of another, leased a house for a particular period with the understanding that the whole house should be reserved for the-use of the party at whose instigation it was leased, such party could terminate the contract at any time, or, in fact, could never occupy the premises at all. To sustain the defendant’s contention it must: appear that the parties intended that the family of the defendant’s, testator could have refused to occupy the premises at all after the. plaintiff’s assignor had hired the house and incurred the obligation to pay rent for the purpose of furnishing a home for the defendr ant’s testator and his family for the summer. I think it was a fair question for the jury from the circumstances proved by the plaintiff whether there was an obligation to occupy the premises under the agreement, and whether such occupation was to be for the whole period from the first of June to the first of November. Objection was made to one house that was looked at by the plaintiff’s assignor and the daughter of the decedent, because the house could be obtained until the first of October only, the defendant’s testator insisting that they must have the accommodations up to the first of November. I think there wás evidencé to show that the arrangement was intended to last until the first of November, and that the eourt correctly refused to dismiss the complaint at the end of the-plaintiff’s case, but that for the error in the admission of this evidence, to which attention has been calléd, there must be a new trial.

The judgment and order are, therefore, reversed and a new trial, ordered, with costs to the appellant to abide the event.

Patterson, Hatch and Laughlin, JJ., concurred;

Judgment and order reversed; new trial ordered, costs to appellant to abide event.  