
    Herrington v. Winn.
    
      (Supreme Court, General Term, Third Department.
    
    May 21, 1891.)
    1. Witness—Competency—Transactions with Decedents.
    In an action against an executrix for the price of goods furnished her testator, plaintiff introduced in evidence a memorandum book, purporting to contain a statement of the goods furnished. Held, that, testimony of plaintiff that testator, in plaintiff’s presence, directed one F. to make the entries, and that F. then made the entries, and read them aloud to testator, shows a transaction between plaintiff and decedent, within Code Civil Proc. N. Y. § 829.
    2. Same—Matters Testified to by Adverse Party.
    In such case plaintiff called defendant as a witness, and examined her as to testator’s condition at the time of the alleged transaction, whereupon she was cross-examined by her own counsel as to testator’s condition. Held, that such cross-examination did not render plaintiff competent to testify as to the transaction with decedent, under Code Civil Proc. N. Y. § 829, which permits such testimony when the adverse party testifies “in his own behalf * * * concerning the same transaction. ”
    
      3. Same—Testimony of Physician.
    The physician who attended testator was competent to .testify as to Ms condition at the time of the transaction, where the physician further stated that the informatian which he obtained while attending testator was not such as was necessary to enable him to act professionally, and that testator’s condition was such that any person of ordinary intelligence could have understood it; Code Civil Proc. N. Y. § 834, providing that a physician “shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity. ”
    Appeal from judgment on report of referee.
    Reference, under the statute, from the surrogate’s court of Rensselaer county, to try Hammon Herrington’s claim of $2,117.36 against the estate of Walter A. Winn, deceased, for balance due for cord-wood and one horse sold and delivered to the deceased, which claim had been rejected by his executrix, Catherine Winn. The reference was by consent of the parties and the approval of the surrogate. The claim was allowed by the referee, and the executrix appeals. Code Civil Proc. 2T. Y. § 829, is as follows: “Upon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through, or under whom such a party or interested person derives his 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, administrator, or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through, or under a deceased person or lunatic, by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person or lunatic, except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence, concerning the same transaction or communication.” Section 834 provides that “a person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity. ”
    Argued before Learned, P. J., and Landon, J.
    
      J. A. Hoag, (R. A. Parmenter, of counsel,) for appellant. James C. Patton, (Prank S. Black, of counsel,) for respondent.
   Learned, P. J.

This is a claim against the estate of Walter W. Winn, referred under the statute. The referee reported in favor of the plaintiff, and the defendant appeals. Two questions are raised,—the first, that the referee admitted evidence inadmissible under section 829, Code Civil Proc.; the second, that he excluded evidence under section 834 which was admissible. The plaintiff was called on his own behalf. A memorandum book of the defendant was produced by defendant. The plaintiff testified that he saw the book in Winn’s house, and that Winn and Fred Winn, the son, was present; that he saw pages 16 and 17, and saw the figures put on those pages; that Fred Winn put them on, and that his father was present; that he also saw a “blank leaf” paged 213 and 214; that he himself put the figures on that paper in presence of Winn and his son Fred; that Fred and plaintiff at that time compared the figures on pages 16 and 17 with those on plaintiff’s book, the number of cords of wood, and how much they came to; that Fred Winn read the figures off aloud; that Winn directed Fred to put the figures down in the book in plaintiff’s presence, that book being plaintiff’s book; that on comparing the two hooks—that is, plaintiff’s book and defendant’s book and the “blank leaf”—the figures corresponded. The two books were then given in evidence by plaintiff. The referee found that these entries, specifying them, were made by Fred Winn in the presence and by the direction of the testator, and were read aloud by his said son in his presence. The case shows that some of the evidence was taken subject to objection, and especially the question whether Winn directed Fred to put down these figures in plaintiff’s presence was objected to as a transaction between deceased and the witness. The objection was overruled, and defendant excepted. Church v. Howard, 79 N. Y. 415. The plaintiff insists that, if this testimony was objectionable when given, the objection was overruled, by subsequent testimony given by defendant. We see nothing to justify this position. The cases cited by the plaintiff do not sustain it. The plaintiff had himself called the defendant as a witness, and had examined her as to the examining of accounts above referred to. She denied that it had taken place. This did not make the plaintiff competent to testify to the transaction; and, after plaintiff had so testified, her denial of such a transaction could not make his testimony competent, if it had been incompetent before. We are obliged, therefore, to inquire whether the plaintiff was competent to testify as he did. This was a personal transaction between plaintiff and the testator. The business was the examining and adjusting of accounts. That the testator acted through his son Fred did not make the affair any the less a transaction with the plaintiff. -The case of Cary v. White, 59 N. Y. 336, is questioned in Re Eysaman, 113 N. Y. 62, at 73, 20 N. E. Rep. 613, 617. But even that case does not sustain the ruling here. And more recent cases condemn it. See, in addition to tile case last cited, Holcomb v. Holcomb, 95 N. Y. 316. In re Dunham, (N. Y.) 24 N. E. Rep. 932. The object of the testimony was to show that testator stated or acknowledged the amounts as correct; and whether the plaintiff testified to this in direct words, or testified that the testator told bis son to put down the figures after Fred had read them aloud, the same result is obtained, and the statute is equally violated. After the plaintiff had examined Mrs. Winn, she was cross-examined by her own counsel as to the condition of the testator at the time of the alleged transaction. Then the plaintiff was recalled, and was asked on his own behalf as to the condition of the testator. This was objected to under section 829. Flow, Mrs. Winn’s testimony related to the same transaction asto which she had been called by the plaintiff. The testator’s condition on the day of the alleged transaction was material on the question whether the transaction took place. She was entitled to give the testimony. Nay v. Curley, 113 N. Y. 575, 21 N. E. Rep: 698. The question then arises, did this permit the plaintiff to testify as to testator’s condition? We think not. Mrs. Winn had not testified voluntarily. She came on the stand as plaintiff’s witness. She was therefore at liberty, without thereby prejudicing her own position, to testify to all.the facts.forming a part of the transaction. She would be much prejudiced if she could not do this without making the plaintiff competent, where, by section 829, he would be incompetent; and tlie condition of Winn at the tittle of the transaction was afact forming part of the transaction itself. Another question arises as to the exclusion of testimony of Dr. Garland. He was a physician, and a friend of testator’s. He was not his family physician, but he did attend him the 22d of December. He was called as. a witness for defendant, and testified as to the unconsciousness and consciousness of testator. The plaintiff moved to strike out this testimony. Tlie referee reserved his decision. Afterwards the defendant recalled the doctor, and asked him whether the information he obtained on the 22d of Decemder was necessary in order to enable him to prescribe professionally; also whether he obtained any information that day which was necessary, etc. Defendant also offered to show by the doctor that the testator’s condition was such that any person of ordinary intelligence could understand it as well as a physician. These questions were objected to, and excluded; and, finally, the referee struck out the doctor’s testimony. It is not necessary to repeat section 834. People v. Schuyler, 106 N. Y. 298, at 304, 12 N. E. Rep. 783, 788, cites approvingly Edington v. Insurance Co., 77 N. Y. 564, and holds that to exclude the testimony of the physician the party must show, among other things, that the information acquired by the physician was such as was necessary to enable him to act in his professional capacity. Under these decisions we do not see why these questions were not proper. Whether it would finally appear that the physician could or could not testify as to the testator’s condition is another matter. But he should have been allowed to explain as to the nature of the information. The decisions in this section are not entirely clear; and, indeed, it is not easy to draw the line between information obtained by a physician’s professional observation and such as would be plain to every intelligent observer, as suggested in the Edington Case. But these questions excluded might have thrown some light on the nature of the information obtained by the doctor, and might perhaps have justified its retention. The judgment should be reversed, referee discharged, new trial granted, costs to abide event.  