
    Eisenlord v. Eisenlord et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    July 2, 1888.)
    Witness—Competency—'Transactions with Decedents.
    Where plaintiff claims certain land as the son and only heir of the deceased owner, his mother is not a competent witness to prove her marriage with deceased under Code Proc. H. Y. § 829, providing that one interested in the event of a suit shall not be examined, in his own behalf or interest, against one deriving title from a deceased person, concerning a personal transaction between the witness and the deceased, as, in the event of recovery, she would be entitled to dower.
    
    Appeal from circuit court, Fulton county.
    The action was ejectment, by John P. Eisenlord, to recover lands in Fulton county of which Peter 0. Eisenlord died seized and intestate. The plaintiff claimed to be his legitimate son and only heir at law. He is the son of Margaret Lipe, and was born October 21, 1857. Peter O. Eisenlord was a physician at Palatine, Montgomery county. He died June 30, 1885, never having lived with Margaret Lipe as her husband. The defendants are his heirs if the plaintiff is not. The claim of the plaintiff rests upon the truth of the allegation that in June, 1857, Dr. Eisenlord and Margaret Lipe were secretly married at St. Johnsville by a justice of the peace named Mosher. The testimony of Margaret Lipe is to the effect that she was then pregnant with plaintiff by her previous illicit connection with Dr. Eisenlord; that the doctor asked her to go to Mosher’s there to be married; that they did go, and the ceremony was performed,—no witnesses being present; that he then went his way, and she hers, and they never came together again. It appeared that they never recognized each other as husband and wife; that the plaintiff was baptized as her illegitimate son; that she never claimed to be the wife of Dr. Eisenlord in his life-time; that she married one Austin in 1872; that her father recovered $1,000 of Dr. Eisenlord in an action against him for seduction. Lipe v. Eisenlerd, 32 N. Y. 229. The justice testified that he performed a marriage ceremony at St. Johns villein June, 1857, in which Dr. Eisenlord was one party, and a person whom he introduced as Margaret Lipe was another; that he made no record of it, and never mentioned it in Dr. Eisenlord’s life-time. The other testimony consisted chiefly of the alleged declarations of Dr. Eisenlord, some tending to show that he was married and had a son; others that he regarded the claim made by Margaret, that he was the father of the plaintiff, as a great outrage. J udgment for plaintiff, and defendants appeal.
    
      A. J. Abbott, for plaintiff. Geo. W. Smith, for defendants.
    
      
       As to the competency of witnesses to prove transactions with deceased persons, see Hillman v. Schwenk, (Mich.) 36 N. W. Rep. 670, and note; Topping v. Windley, (N. C.) 5 S. E. Rep. 14; Crimmins v. Crimmins, (N. J.) 10 Atl. Rep. 800.
    
   Landon, J.

We think it was error for the court to allow the plaintiff to examine Margaret Austin, his mother, as a witness in his behalf, on the trial, touching the alleged marriage of herself with Dr. Eisenlord, and what took place between them immediately preceding and following the alleged marriage. Section 829 of the Code of Procedure declares that, “ upon the trial of an action, * * * a person interested in the event * * * shall not be examined as a witness, in his own behalf or interest, * * * against a person deriving his title or interest from, through, or under a deceased person, * * * concerning a personal transaction or communication between the witness and the deceased person.”

1. Margaret Austin was interested in the event of this action. The rule laid down by the elementary writers, (1 Greenl. Ev. § 390,) and approved in Hobart v. Hobart, 62 N. Y. 82, is; “The true test of the interest of a witness is that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action.” Miller v. Montgomery, 78 N. Y. 285. The judgment in favor of the plaintiff would furnish her with important evidence to establish her claim to dower in the premises described in the complaint. Upon this plaintiff’s recovery, suppose Margaret brings her action against him to recover her dower. This judgment roll would show against the plaintiff, claiming under it and accepting its terms, that Dr. Eisenlord died seized of the premises, leaving, as the complaint alleges, this plaintiff his “lawful descendant, son, and sole heir at law of the said Peter O. Eisenlord, deceased, and as such heir at law entitled in fee to the immediate possession thereof. ” Evidence aliunde would be competent to show that upon this trial, and essential to his recovery, he alleged and established the facts that Margaret Austin was his mother; that, prior to his birth, she and Dr. Eisenlord were lawfully married. It is not essential that she should be a party to the present action. It is nevertheless evidence in her behalf, against him, that he, in order to obtain title to the land, solemnly declared, and procured the truth of the declaration to be judicially established, that all the conditions upon which Margaret’s right to dower depend were absolutely true in fact. It is not received as a judgment, but as his declaration. 1 Greenl. Ev. § 527a; .Cook v. Barr, 44 N. Y. 156. It is impossible to see how this plaintiff, either in law or fact, could gainsay the truth of his solemn declaration.

2. Margaret Austin, being thus interested in the event, was examined touching the very matter upon which her interest depended. Her testimony, which tended to establish the plaintiff’s title to the land, tended just as completely to establish her own.

3. She testified against the defendants, whose title, whatever it was, was derived through Dr. Eisenlord, and not otherwise.

4. Her testimony was concerning the personal transactions and communications between Dr. Eisenlord and herself. The authorities are to the same "effect. Sanford v. Ellithorp, 95 N. Y. 48; Steele v. Ward, 30 Hun, 555; Miller v. Montgomery, supra. For this error the judgment should be reversed, and a new trial granted, costs to abide the event. We think, also, the order for a new trial should have been granted upon the facts. We concur in the view taken by Mr. Justice Bish in the ease next reported. (Eisenlord v. Clum, infra.)  