
    Agnes E. Burns, Appellant, v. Mary A. Mullin, Individually and as Executrix Named in a Paper Propounded as the Last Will and Testament of Agnes G. Golden, Deceased, Respondent.
    
      JSvidence—testimony by apcvrty as to a conversation between a decedent under whom-she claims and the adverse party— extent of the right of the adverse party to testify concerning such conversations.
    
    Testimony given by the defendant in an action, concerning a conversationbetween a decedent (under whom the defendant claimed the title to real property sought, to be charged with a lien by the plaintiff) and the plaintiff in the action, in which the witness took no part, is not within the prohibition of section 839 of the Code of Civil Procedure, as sucti'testimony relates to a fact of which the witness had knowledge, not to a personal transaction or communication between the witness and the decedent.
    The plaintiff in such an action may not testify as to whether tne' testimony given by certain witnesses, called by the defendant to prove conversations between the plaintiff and the decedent, was; true, where it appears that the form in which the questions were propounded necessarily required answers as to the-substance of communications between the plaintiff and the decedent.
    
      Semble, that the plaintiff might, by her; testimony, supply parts of such conversations omitted in the testimony of the defendant’s witnesses, or deny that the defendant’s witnesses-were present at the conversations referred to.
    Appeal by the plaintiff, Agnes E. Burns, from a judgment of the-Supreme Court in favor of 'the defendant-, entered in the office of the clerk of the county of Rew York on the 8th day of September,. 1898, upon the decision of the court rendered after a trial.at the New York Special Term.
    
      Rasims 8. Ransom, for the appellant.
    
      John G. Boyd, for the respondent.
   Patterson, J.:

The plaintiff, one of the children of Charles and Alice Golden (who are now deceased), brought this action, seeking to have charged upon certain real estate, formerly belonging to her father and mother, and the title to which is now vested in her sister, the defendant, certain sums of money, which she claims to have advanced to her parents in the lifetime of her father, for the purpose of enabling him to pay, or keep down, charges and incumbrances upon the property, and under an alleged agreement made' with him and assented to by Mrs. Golden, to the effect that the advances so made should constitute a lien or claim upon the property or that the property should stand as security for such advances. The plaintiff prayed that an account of such moneys be taken; that the advances be declared to constitute a valid lien upon the property; that certain deeds and transfers of that property by which the defendant, Mary Mullin, became vested with the title to it, be declared void, and that the property, or so much thereof as may be necessary to satisfy the plaintiff’s claim, be sold, and for such other relief as may be just. The complaint was dismissed on the merits and the plaintiff appeals from the judgment of dismissal.

The ground upon which the complaint was dismissed was that no agreement was made nor was any understanding had between the plaintiff and her father and mother, that the plaintiff should have a lien or any interest whatsoever in the property mentioned in the complaint, by reason or on account of any payments made to or for them by the plaintiff; and that'none of the-payments made by the plaintiff to Golden or his wife were upon an understanding or agreement that the plaintiff should have any interest in the real estate set forth in the complaint by reason or on account of any such payment or advances, and that on the whole case the plaintiff failed to establish a right to any equitable or other relief in the action.

At the trial the case turned upon the issue of fact, of an agreement having been made or an understanding had of the character claimed by the plaintiff. It wasi proven that the plaintiff, who was a school teacher in the city of New York, had for many years prior to the death of Charles Golden, in May, 1891, been in the habit of handing to him. or to his wife the monthly check she received in payment of her salary as such school teacher, and it is not open to-doubt on the whole record that during a period of time beginning in May, 1876, down to the month preceding the death of her father,, she did pay to him in the aggregate, in the manner stated, the sum of very nearly $11,000. It is also clearly established by the proof that the moneys so received by the plaintiff’s parents were used, in whole or in part, in the payment of interest upon mortgages or in satisfaction of other charges upon some of the real estate described in the complaint. But the evidence respecting' the terms upon which the moneys were paid to and received by Golden was so conflicting that the justice at Special Term was authorized to make the findings he did make in regard thereto. The plaintiff’s claim respecting the relations established between herself and her parents with regard to the moneys is as before stated. The defendant claimed that the moneys paid in by the plaintiff to her parents from 1879 down to the time of her father’s death, were so paid for board for herself and her two children. It is not contradicted that ■ ■ the plaintiff (who was married in 1879) did live and board with her parents continuously from some time in August, 1879, down to the death of her father, and that her two children lived and boarded with their grandparents from the time of their birth until the death of Mr. Golden. The plaintiff swears that after her marriage 'she returned to her father’s house in 1879, and that there was a distinct arrangement made between herself and him as follows : “ My father told me if I would go to school and continue teaching and come home and hand to him my salary ás teacher the same as I had before marriage, he would take no board from me, and that after the prop-' erty was cleared he would pay me every cent I gave into that prop, erty, and after he died the property was to be equally divided between my mother and I and my sister — and my brother should be repaid for every cent he put in.” He also said, “Agnes, you find no fault, that money all went to buy this house ; it always has been for you as security for the money that you are giving' to me.” And she swore that “ there was no board ever paid into the house by any one,” and that the conversation to which she last referred was.'in .March, 1880. The plaintiff’s husband-corroborates her, and there are other witnesses called by her who testify to a state of facts substantially according with the statements of the plaintiff. On the other hand, there is the most emphatic testimony of witnesses,- some of whom are wholly disinterested, who declare that they heard the plaintiff state on various occasions that she was paying board for herself and her children to her father, and there are other witnesses for the defendant who testify that they were present at conversations between the plaintiff and her parents when the specific agreements for board were entered into between those parties. There is nothing inconsistent with the idea of the plaintiff’s paying board in the uses to which Mr. Golden put the money, and-he may have declared, and doubtless did declare, time and again that it was the money he received from his daughter that enabled him to carry the property. The trial judge must have relied upon the statements of the witnesses for the defendant concerning the agreement to pay board, and must have reached the conclusion that the moneys paid in by the plaintiff were for the board of herself and her children ; and having reached that conclusion, the finding that the moneys were not advanced as loans, to be repaid from or secured upon the real estate, was necessai’ily authorized.

We have -examined the whole record very carefully to ascertain whether or not the condition of the proof would justify an inference that the loan of the money may be regarded as an equivalent for board, or stand in the place of paying board, as seems to be claimed under the plaintiff’s own testimony; but the evidence on the part of the defendant is such as to render that view of the subject altogether inadmissible. We cannot, therefore, interfere with the decision upon the merits as the court below, by its findings, has determined them to be.

It is urged, however, by the appellant that errors were committed on the trial in the admission of the testimony of some witnesses and the rejection of that offered of other witnesses. All of those objections arise under the provisions of section 829 of the Code of Civil Procedure.

First. It is objected that Mrs. Mullin, the defendant, was permitted to testify to a conversation had between the plaintiff and her father and mother in the defendant’s presence and hearing. That conversation took place in 1876, when, the plaintiff first began to teach school. It does not appear fhat Mrs. Mullin took part in this conversation. It was an important piece of testimony undoubtedly, for the witness swore that at that conversation Mr. Golden told the plaintiff that he had supported her until that time, and that thenceforth she, the plaintiff, and her brother and sister must pay hoard, and that the plaintiff said she would willingly do so, and that she would be only too happy to help her family. It was claimed that the defendant was disqualified from testifying as ¡to this-conversation because she is a party interested in the event of this .action, but her testimony did not relate to a conversation or communication had between her and a deceased person under whom she claims. The prohibition of the statute applies to a person interested in the event, testifying concerning a personal transaction or communication between the witness and the deceased person. This was not a transaction or communication between this witness and the deceased person. As was. said in Denise v. Denise (110 N. Y. 568), “It does not really, or by ordinary construction, involve such a personal transaction between plaintiff and the intestate. . * * : * It is the statement of a fact of which the witness had knowledge; not of a transaction between her and the deceased.”

But it was not evidence that could be excluded under section 829 of the Code of Civil Procedure. The plaintiff claimed under an agreement with Charles Golden, which was binding also on Mrs. Golden. A personal transaction or communication between the plaintiff and her parents was the matter to be proved. Mrs. Mullin derives her title from her mother and father, and by the express terms of the statute the plaintiff was prohibited from testifying to such a personal transaction or communication against Mrs. Mullin; but section 829 of the Code does not enact that Mrs. Mullin was not competent to testify to a personal transaction between the plaintiff and her father.' On the contrary, it would seem to authorize Her so to testify by necessary, implication, because it provides in effect that if she should so testify, the adverse party is at liberty also to testify; and the objection to Mrs. Mullin’s testimony, therefore, was properly overruled.'

Second. It is claimed that there: was error in not permitting the plaintiff to answer certain questions put to her respecting matters testified to by the defendant’s husband and by other of the defendant’s witnesses as to conversations had between the father and mother and the plaintiff on the subject of board. Mr. Mullin testified that he was -present and heard a conversation in relation to a charge for board for one of the infant children, and he-also testified' that Mrs. Golden asked the plaintiff to pay board which she owed. Katie Kingsley, a witness for the defendant, testified that she was present at a conversation between the father and mother and the plaintiff and that the plaintiff agreed to pay a certain sum per week for the board of herself and one of the children. This witness also testified that the plaintiff tried to borrow money from her mother and that her mother refused to loan it to her. When the plaintiff was called upon ostensibly to contradict these witnesses, she was in substance asked whether the statements made by such witnesses were true. These questions were objected to under section 829 of the Code of Civil Procedure, and the objections were sustained, the testimony being excluded. It is now claimed that the evident purpose of these questions was to prove by the plaintiff that no conversations of the character stated by this witness took place between the plaintiff and her father and mother. It is apparent that the object was not only to prove that such conversations did not occur, but the form in which the questions were-put necessarily involved answers as to the substance of communications between the plaintiff and her parents. It is claimed that, inasmuch as the defendant called these witnesses and examined them respecting the conversations, the plaintiff had the right to contradict them and give her versions of those conversations, and support for this position is claimed upon what was decided in Nay v. Curley (113 N. Y. 575). It was held in that case that where the door is opened by a party calling a witness, “ and examines him as to a particular part of a communication or transaction, the other party may call out the whole of the communication or transaction bearing upon or tending-to explain or qualify the particular part to which the examination of the other party was directed,” and this, irrespective of the provision of section 829 of the Code of' Civil Procedure which, under such circumstances, would not control. But these questions under consideration here were not directed to supplying omitted parts of a conversation. They were addressed to the truth or falsity of that which the defendant’s witnesses liad sworn ¡ivas the subject-matter of the conversations. Nor were the questions of such a character as would bring the case .within the ruling of Pinney v. Orth (88 N. Y. 451) or Lewis v. Merritt (98 id. 206), as those cases are explained in Clift v. Moses (112 id. 438). Inj the case last cited, it is said : “ It was held in Pinney v. Orth that the prohibition of section 829 did not preclude the survivor from testifying to extraneous facts and circumstances which tend to show that a witness who has testified affirmatively to such (personal) transaction or communication, has testified falsely,’ and, consequently, that the survivor might testify that a witness on the other side was never present at any interview between 'the survivor arid the deceased person, as he had testified, thereby infereritially negativing tjie existence of any conversation such as was related by that witness. But the court confined the range of permissible contradiction, within narrow limits, and expressly held that it could not. be extended to include testimony by the survivor of what was or was not said between the parties at the conversation sworn to by a witness Í on the other side, although the evidence was offered to contradict jhis narration of the transaction.”

The questions asked of the plaintiff and overruled by the court in this connection were not of that independent character whiclvwould justify the plaintiff testifying. ¡An answer to them would have been more than a mere denial of the defendant’s witnesses being present and having heard such conversations. Those answers would have gone to the very substance of communications between. the plaintiff and her parents, and, as we think, fall within the .rule of decision in Clift v. Moses (supra). That a party may testify toutside facts. tending to contradict evidence given by adverse, witnesses, though those facts may independently tend; to establish an inference that a transaction or cotnmunication has or has not taken place with a deceased, may be true; but that is not this case. , We have examined the other exceptions to the rulings upon evidence and do not find that they require ¡any particular comment.

The judgment must be affirmed, with costs.

Van .Brunt, P. J., Rumsbt and O’Brien, JJ., concurred.

Judgment affirmed, with costs.  