
    Smith v. Sergent.
    
      Evidence—personal transactions with deceased person — supposition of witness — admissions of privy.
    
    In an action by an executor upon a note given by defendant to testator, the defense was that,the note had been given by the testator before death to defendant’s wife, and a new note had, at testator’s request, been given therefor by defendant to his wife. At the trial defendant testified that he had seen the note in his wife’s possession. Held, not a personal transaction between defendant and testator, and not inadmissible under Code, § 399,
    A witness for defendant who had drawn up an assignment of the note from the testator to defendant’s wife, which was not executed, was asked, “ Did you suppose it (the assignment) was signed by C. (the testator) at the time ?” To which he answered “Yes.” Held, inadmissible. The supposition of the witness was not a fact by which the rights of the testator or his representatives should be affected.
    Admissions of defendant’s wife that she did noi, own the note held competent as against defendant. Waring v. Warren, i Johns. 340; Smith v. Webb, 1 Barb. 230 ; Paige v. Oagwin, 7 Hill, 361; Booth v. Swezey, 8 N. Y. 279, 280 ; Poster v. Beals, 21 id. 247-249; Johnson v. Hicks, 1 Lans. 158.
    Motion for a new trial upon a ease, and exceptions ordered to be heard in the first instance at general term. The action was brought by Charles S. Smith as executor of the last will and testar ment of Henry J. Corbin, deceased, against Alvin D. Sergent, upon a note given by defendant to plaintiff’s testator. The case was tried at the Chenango circuit and a verdict rendered for defendant.
    
      H. G. Prindle, for plaintiff.
    
      Isaac 8. Newton, for defendant.
   Boches, J.

The opinion is devoted to a review of the evidence. The only points of any importance passed upon are fully noticed in the head-note.

New trial granted.  