
    George H. Franklin, plaintiff and appellant, vs. James H. Pinkney et al. administrators, &c. of Robert T. Haws, deceased, defendants and respondents.
    1. The object of the exception in section 399 of the Code of Procedure, declaring that a party to an action shall not be examined as a witness in his own behalf against parties who are representatives of a deceased person, in respect to any “ transactions or cmmnunications had persmially ” by him with the deceased, was to exclude a party from testifying to any occurrence wherein the other party, who has died since, was or must have been an actor. It was not designed to exclude the testimony of a party as to an occurrence at which the other deceased party needed not to have been present, or a fact which he needed not to have known.
    2. The ownership of money which had been .deposited by the plaintiff in the same bank in which the deceased kept his funds, and was entered to the credit of the latter, in his bank hook, with his consent, is not within the meaning of such provision a “transaction or communication” between the plaintiff apd, the decedent personally, which yrotLld exclude the testimony of the former, as to his ownership, in an action against the personal representatives of the latter for such sum.
    (Before Bobertson, Ch. J., and Monell, and Garvin, JJ.)
    Heard October 6, 1864;
    decided October 29, 1864.
    Robert T. Haws, now deceased, was during the years 1860 to 1862, comptroller of the city of Hew York. George H. Franklin, the plaintiff, being his intimate friend, and holding the office of collector of the city revenue, had an office in the same building with Haws. Franklin kept no bank account of his own, but was in the habit of depositing his surplus moneys with Haws, by placing them in the Tradesmen’s Bank, with Haws’ assent, to the credit of Haws. Haw's died suddenly, intestate, having in his hands a considerable sum of money belonging to Franklin. His administrators having declined payment of the claim, this suit was brought. Upon the trial, the plaintiff proved by other witnesses that Franklin often came to Haws’ room, got from Haws his bank book, took it to his own office, took money from his own safe or pocket book, and took or sent it the Tradesmen’s Bank, where it was deposited to the credit of Haws, and so entered in the bank book. That Franklin would then return the book to Haws, who would look at the entry and place the book again in his drawer. He also proved the subsequent entry by Haws of these amounts in his check book. The plaintiff then being called in his own behalf, is asked if, having the said bank book in his possession, as testified to by the other witnesses, he made any deposit of moneys in the Tradesmen’s Bank, credited to Haws in said book, and if so, whose money it was. The defendants’ counsel objected to the admission of this evidence under section 399 of the Code of Procedure. It was received, with leave to the defendants to move to strike out under the objection made. The plaintiff then testified that he did so deposit money, and that it was his own money, giving the particulars of such deposits. On motion of the defendants’ counsel, made in accordance with the permission above stated, this testimony was stricken out, as not being within the terms of section 399. To this decision of the referee the plaintiff excepted. The plaintiff being the only witness by whom the ownership of the money deposited could be proved, the complaint was dismissed and exception taken. • That part of section 399 of the Code, affecting the question presented for consideration at this time, is and was at the time of the trial, in 1864, as follows :
    “ A party to an action or special proceeding, including proceedings in surrogates’ courts and proceedings for the summary recovery of the possession of land, may be examined as a witness on his own behalf, or in behalf of any other party, in the same manner, and subject to the same rules of examination as any other witnesses ; provided, however, that the assignor of a thing in action shall not be examined in behalf of said party, nor shall a party to an action be examined in his own behalf in respect to any transaction or communication had personally by said assignor of said party respectively, with a deceased person against parties who are the executors, administrators, heirs-at-law, next of kin, or assignees of such deceased person, where they have acquired title to the cause of action immediately from such deceased person, or have been sued as such by the executors, administrators, heirs-at-law, next of kin, or assignees.
    From the judgment of dismissal the plaintiff appealed.
    
      Henry H. Anderson, for the appellant.
    I. A literal interpretation of section 399 of the Code imposes no limitation upon the testimony to be given by the plaintiff in this action, for it is not clear in what respects the defendants ever “ acquired title ” to “ the cause of action ” in this suit “ immediately from the deceased,” nor to what classes of action the limitation is to be applied.
    II. But if it be considered that this action is one in which the plaintiff’s testimony is subject to the limitations imposed by this section, the evidence of the plaintiff as to the matters upon which he was interrogated was properly offered and received, and should have been retained in the case. Section 399 excludes “ transactions and conversations had personally with the deceased,” and no other transactions or conversations. The plaintiff would not have been permitted to testify as to the conversations tiad with Haws—for conversations are excluded—nor would he have been permitted to testify as to the matters proved by Allen, viz : receiving a bank book from and returning the same to Haws, for those are transactions had personally with the deceased ; but the matters of which the witness was interrogated are those of which the deceased, at the time, had no personal knowledge, and to say that a man can have transactions personally with another, of which the other person has no personal knowledge, is an absurdity.
    
      W. C. Barrett, for the respondents.
    I. There are two questions in the case ; (1.) Was the testimony given by the plaintiff, evidence in respect to a “transaction” or' “ communication” had by him personally with the deceased? (2.) Does such testimony, if admissible, afford any evidence of the existence of a cause of action in favor of the plaintiff against Robert T. Haws ?
    II. As to the first question, we submit that the testimony of the plaintiff was properly rejected for the reasons specified in the opinion of the learned referee.
    III. If the testimony was not in respect to a transaction had personally with the deceased, then, even if it stands, the plaintiff cannot recover—there being no question of agency in the case.
    IY. The course of legislation on the subject has been marked by a determination to prevent a party recovering upon his own evidence in any case, where the deceased, if alive, might have controverted his statement, (a.) The act of 1860 contained this limitation upon the right of a party to be examined in his own behalf, “ except that a party shall not be examined against parties who are representatives of a deceased person, in respect to any transaction had personally between the deceased person and the witness.” (b.) This act is the only one • which has received judicial construction, and that merely upon the question as to who should be deemed “ representatives.” (McCray v. McCray, 12 Abb. 1. Schenck v. Warner, 37 Barb. 260. Lee v. Dill, 39 id. 519. Traphagen v. Traphagen, 40 id. 537.) (c.) In all of these cases it was assumed, as a matter beyond debate, that if the defendants were' held to be the representatives of a deceased person, the testimony of the plaintiff was inadmissible. In some of the cases it was held that executors and administrators only, were representatives of a deceased person within the meaning of the statute—excluding from the category heirs at lg,w, next of kin, devisees, &c. In others, the latter were included. To set this discussion at rest, the act of 1862 was passed, which reads as follows: “Provided, however, that .the assignor of a thing in action shall not be examined in behalf of said party, nor shall a party to an action be examined in his own behalf, in respect to any transaction or communication had personally by said assignor or said party respectively with a deceased person, against parties who are the executors, administrators, heirs at law, next of kin or assignees of such deceased person, where they have acquired title to the cause of action immediately from said deceased person, or have been sued as such executors, administrators,” &c. (Laws of 1862, p. 858, ch. 460, § 31.) It will thus be seen that the intention of the legislature was to set the question at rest and to render the limitation • complete and comprehensive. Note the change from the words “in respect to any transactions had personally,” in the act of 1860 to the words “ in respect to any transaction or communication had personally,” in the act of 1862, together with the addition of “heirs at law, next of kin or assignees.” The legislature thus assumed that there might be a personal “transaction” without a personal “communication.”
    V. The question is thus reduced to a construction of the words “transaction or communication had personally with the deceased.” (1.) To suppose a comma after the words “transaction” and “personally” is to end the discussion. (2.) But grant that the word “ personally” has reference to “ transaction” as well as “ commpnication;” and does that alter the case ? It proves, on the contrary, that’ the legislature assumed that there might be a personal transaction without a personal communication. Without this.assumption the statute, as it stood in 1860, was ample to cover personal communications. It seems to us that this is a supreme argument, and renders it perfectly conclusive that although there was no “personal communication” between Franklin and Haws, there was a “personal transaction” even if not in the ordinary civilian acceptation of the term, yet within the meaning of the legislature, and the intent and spirit of the statute.
    VI. On the second point we submit that the testimony, even if admissible, does not evidence any right of action in favor of the plaintiff against Haws. (1.) Franklin says he took Haws’ bank book and made deposits of money in the bank, which he caused to be credited in the bank book to Haws ; that the moneys so deposited were his, Franklin’s ; and it appears that Haws saw the credits arid made some corresponding entries in his check book, in one instance prefixing thereto the initials “ Gr. H. F.” but on the production of Haws’ bank book six of the alleged deposits by Franklin do not appear therein. (2.) We submit that, from these facts, the only deducible presumption of law is, that Franklin was paying a debt due by him to Haws. In the absence of an explanation, (the affirmative in respect to which is with the plaintiff,) the legal presumption always is that the money belonged to the one who received it, and not that he thereby became a debtor to the other. (Bogert v. Morse, 1 Comst. 377. Sweet v. Barney, 24 Barb. 533. Welch v. Seaborn, 1 Stark. 474.) (3.) One man cannot become the creditor of another without his consent; and it must appear that the money was paid at the instance either express or implied of the defendant. (Chitty, 660, ed. of 1860, and cases there cited.) (4.) Haws’ knowledge of the deposits, unaccompanied by any act, expression, or explanation, does not vary the presumption. He would, in case they were payments, examine his bank book, make entries in his check book, and note Franklin’s initials just as much as though they were- loans.
    VII. The plaintiff’s difficulty is, that before the law will presume an indebtedness, there must be something more than a mere passing of money, however effected, from one party to another ; and that “something more” involves what even the plaintiff’s learned counsel admits would be, without any question, both a personal tranaetion and a personal communication with the deceased.
   By the Court,

Robertson, J.

The 399th section of the Code, which confers on parties to actions generally the right of testifying on their own behalf, excepts therefrom in actions "of a certain kind against certain parties as the representatives or successors of others, occurrences of a certain description. Such representatives or successors are enumerated as the “ executors, administrators, heirs at law, next of kin or assignees of a deceased person.”' The actions are described as those where the persons sued “ have acquired title to the cause of action immediately from such deceased person or have been sued as such representatives or successorsand the occurrences are described as “ transactions or communications had personally ” by the party offered as a witness on his own behalf with such deceased person. The only question presented on this appeal turns on the meaning of the phrase “ transactions or communications personally.”

The object of this exception was, plainly, to exclude a party from, testifying to any thing which occurred to the other party, which or who was or must have been an actor in order to render the testimony relevant, had died since, and as clearly was not designed to exclude the testimony of a party as to an occurrence at which he needed not to have been present, or a fact which he needed not to have known, in order to make evidence of it admissible. It requires the transactions or communications which it excludes to have been personal between the living and deceased party. Nothing, of course, can well be personal unless the parties individually are present when it occurs. Of course, this section assumes that transactions may occur without a communication ; which latter means, undoubtedly, words either spoken or written, although afterwards the term conversation alone is used in the same section. Acts may be done, such as the delivery of an article, which may most materially affect the right of a party ; although not a word may be said by either party. This section, of course, could not have been intended simply to exclude the testimony of a party as to his own acts, and yet, allow him to testify where he was present at an occurrence between an agent of his and a deceased person.

The word “ transaction ” in this provision was never intended to embrace all the occurrences which go to make up a cause of action, in other words, every thing material in an action; otherwise a different form of expression would have been used ; for that purpose it would have expressly excluded either party from testifying at all as to any thing where the other party was dead. There may be numberless occurrences or facts necessary to be established in every action, in regard to which one of the parties may know nothing, and yet it would be unreasonable and unjust that his antagonist should by his death be deprived of the right of testifying in relation thereto.

The ownership of the money deposited by the plaintiff in the bank of the decedent, represented by the defendants, was in no sense a transaction or communication between them personally, since it did not appear that such decedent knew any thing about it. It is true it might have appeared, on cross-examination, that such ownership was claimed exclusively by virtue of something which passed between the plaintiff and such decedent personally, and then its exclusion would have been proper. The fact of deposit was sustained by other evidence, but to whom the money belonged, before it was so deposited, was a material subject of inquiry, whether the learned referee was right or wrong in his view that the presumption of law is that the delivery'by one man of money belonging to him to another, is intended to be the mere payment of a debt. It is yery clear, unless it was the plaintiff’s money when he deposited it, he could not well recover for it in this action. Upon the referee’s view, even if he did prove it, something more was necessary to he established ; some understanding between the parties, that all moneys so deposited should be considered as a loan repayable on demand. To that, of course, the plaintiff could not be allowed to testify, if entered into in person between them.

How far the referee would have been justified upon the evidence admitted by him, even with the addition" of that excluded, in finding in favor of the plaintiff, is not now in question. He excluded pertinent evidence not within the prohibition of" the statute, and for that error the judgment must be reversed, and a new trial had, with costs to abide the event.  