
    Charles F. Brown, as Administrator, Resp’t, v. Simeon Klock, App’lt
    
    
      (Court of Appeals,
    
    
      Filed November 26, 1889.)
    
    Monet had and received—Evidence.
    Plaintiff’s testatrix, by her will, gave to various legatees the sum of $2,750. In an action to recover moneys alleged to have been received by defe dont from her in her life time, plaintiff testified, under objection, that all claims presented to him were paid, that the time for presenting claims had elapsed and that the estate, independent of the claim in suit, only amounted to $1,800. Held, incompetent for any legitimate purpose.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment for plaintiff entered upon report of referee.
    
      C. Carskadden, for app’lt; James Coupe, for resp’t.
    
      
       Reversing 24 N. Y. State Rep., 165.
    
   Earl, J.

This action was brought to recover of the defendant the sum of $1,429.10, with interest, for money alleged to have been received by him for or from the plaintiff’s testatrix in her life time and which at her death was due from him to her. The defendant, by his answer, put in issue the alleged indebtedness, and the action was referred to a referee who found in favor of the plaintiff. The evidence to establish the defendant’s liability appears in the record to have been very uncertain and unsatisfactory, and we are not convinced that the referee reached the right cónclusion upon the merits. Taking the most favorable view of the evidence for the plaintiff the case was a very close one, and therefore any improper evidence received for the plaintiff may have materially influenced the decision and prejudiced, the defendant.

The testatrix gave by her will in legacies to various legatees the sum of $2,750. Upon the trial the plaintiff as a witness was asked these questions, which were objected to and answered as follows:

Q. Were all the claims that were presented to you as administrator paid ? A. All the claims that have been presented have been paid.
“Q. Has the time for the presenting of these claims against the estate passed? A. It has.
“Q. Independent of the claims in suit, what was the amount of the estate of Elizabeth K Petrie, deceased, after the payment of her debts? A. About $1,800.”

This evidence was incompetent for any legitimate purpose. As the testatrix had given in legacies $2,750 and her estate, after the payment of debts, amounted to only $1,800, the counsel for the defendant claims that this evidence was given to show that, in the mind of the testatrix, she had an estate sufficiently large to pay all her legacies, and therefore that the claim in suit really belonged and was owing to her estate. Unless the evidence was introduced for some such purpose, it is not perceived for what purpose it was intended. In weighing the doubtful and uncertain evidence in the case, the referee may have given the argument which could be drawn from the actual amount of the estate as compared with the amount of the legacies given by her some influence. We think this evidence was entitled to no weight, and was wholly immaterial and improper,.and we are unable to say in such a case as this that it did not prejudice the defendant. If the plaintiff’s case had been reasonably clear of doubt or fairly sustained by satisfactory evidence it would have been possible to hold that this evidence was not damaging to the defendant. But upon the case, as presented to us, we ought not to disregard it as harmless.

We have purposely omitted to comment particularly upon the evidence bearing upon the defendant’s liability, so that upon the new trial neither party may be prejudiced by our views thereof.

For the error mentioned, the judgment of the general term and that entered upon the report of the referee should be reversed and the order of reference vacated and a new trial ordered, costs to abide event.

All concur.  