
    Seth D. Wilcox, Respondent, v. Louisa A. Howd, Appellant.
    
      Issue as to whether a wife or her husband agreed to pay for afa/rni—cleela/rations of the husband as to his inability to pay for it are inadmissible.
    
    Where the principal issue in an action is whether the plaintiff, as vendor, sold a farm to the defendant or to her husband, not a party to the action, his declarations, not made in the presence of the defendant nor assented to by her, seating, in substance, that he was dependent upon his salary, and found it impossible to live upon it, and that he was financially unable to pay for the farm, are inadmissible.
    Appeal by the defendant, Louisa A. Howd, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 24th day of February, 1897, upon the report of a referee for $2,004.08 damages, besides ■costs.
    
      William Nottingham, for the appellant.
    
      M. H. Powers and A. G. Woodruff, for the respondent.
   Per Curiam :

The plaintiff in his complaint in this action alleges, among other things, that in the year 1880 he conveyed to the defendant’s husband a farm situate in Camden, Oneida county, in consideration of the sum of $2,700, which the defendant agreed to pay the plaintiff therefor upon demand, but which it is alleged she has omitted to pay. The answer denied this allegation of the complaint, and upon the trial evidence- was given tending to show that the farm was purchased by the husband and upon his individual promise to pay for the same.

In support of the plaintiff’s contention, several witnesses were called to prove that Joel Howd, .the husband of the defendant, who, it seems, was a Methodist, minister, was entirely destitute of means, the inference sought to be conveyed, by this class of evidence obviously being that the plaintiff would not have conveyed the farm, relying upon the jiromise of a person in his circumstances to. pay therefor.

Among the witnesses who gave testimony upon this subject was one Harmon Howd, a brother of the defendant’s husband, who was permitted to detail, over the defendant’s objection, a conversation had with Joel Howd in which the latter stated in substance that he was dependent upon his salary of $800 per annum and that he found it impossible to live upon that sum. Subsequently Meigs Howd, another brother, was in like manner permitted to detail a conversation with Joel in which the latter admitted that he was unable to pay for the farm in question.

We think these declarations were clearly incompetent, as they were neither made in the presence of the defendant nor assented to by her. The learned referee found against the defendant upon the issue to which we have just adverted, but the evidence relating thereto upon which he based his conclusion was, at the best, somewhat. inconclusive, and that portion of it which was received over the defendant’s objection could not but have been prejudicial to her interests. We are of the opinion, therefore, that the exceptions taken to its admission present error which requires a reversal of the judgment appealed from.

Judgment reversed and a new trial ordered before another referee, with costs to the appellant to abide the event.  