
    JOHN PETER EISENLORD, Respondent. v. CATHARINE L. EISENLORD and Others, Appellants, JOHN PETER EISENLORD, Apellant, v. DAVID H. CLUM and Others, Respondents.
    
      A mother, how far incompetent to testify to transactions with the father, establishing her son’s legitimacy — admissibility, on that question, of a judgment-roll in an action against the father for seduction
    
    In this action of ejectment brought to recover lands in Fulton county, the plaintiff claimed to be a legitimate son and only heir-at-law of one Bisenlord, who died intestate, seized of such lands, claiming that he was the son of Margaret Lipe who had been secretly married to Bisenlord at a time when, through previous illicit connection with him, she was pregnant with plaintiff.
    On the trial the plaintiff was allowed to examine Margaret Lipe, his mother, as a witness in his behalf in relation to the alleged marriage of herself with Eiseniord and as to what took place between them immediately preceding and following the alleged marriage.
    
      Held, that Margaret Lipe was interested in the event of the action, as a 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, and that she was, therefore, incompetent to testify as to personal transactions with Eiseniord, as against the defendants whose title, whatever it was, was derived through Eiseniord
    In another action, in which the same issue was presented, a judgment record in the case of Lipe against Eiseniord was offered by the plaintiff and received in evidence, and afterwards an application was made by the plaintiff to withdraw the judgment record, which was refused. This judgment was recovered in an action brought after the plaintiff’s birth, by the father of Margaret Lipe, against Eiseniord to recover damages caused by his alleged seduction of Margaret.
    
      Held, that this record was competent, although the plaintiff was not a party to the action, as it tended to show the status and relation of Eiseniord to Margaret Lipe.
    That, by the common law, the condition of the child follows that of its father, and that the child has nothing to say upon such an issue.
    That it was not necessary that Margaret Lipe should be a party to the action as the plaintiff’s status would follow that of his father.
    That whether this judgment record was conclusive or not, in regard to the status of Eiseniord, it was competent evidence in this action against the plaintiff, and evidence of a very high character.
    Appeal by the defendants from a judgment, entered upon the verdict of a jury on a trial at the Eulton county Circuit; also from the order denying a motion made upon the minutes to set aside the verdict and grant a new trial.
    The action was ejectment to recover lands in Fulton county, of which Peter O. Eiseniord died seized and intestate. The plaintiff claimed to be bis 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 her’s, 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 lifetime ; that she married one Austin in 1872 ; that her father recovered $1,000 of Dr. Eisenlord in an action against him for seduction. (Lvpe v. Eisenlord, 32 N. Y., 229.)
    The justice testified that he performed a marriage ceremony at St. Johnsville in 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 lifetime. 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.
    
      A. J. Abbott, for the appellant.
    
      George TE Smith, for the respondents.
   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 Civil 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.”

First. Margaret Austin was interested in the event of this action. The rule laid down by the elementary writers (Greenl. on 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, 18 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 to procure 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 thedeclarationto 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. on 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.

Second. 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.

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

Fourth. 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., 18; 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 Fish in the case next reported. (John Peter Eisenlord v. David H. Clum, John I. Eisenlord et al.)

JOHN PETER EISENLORD, Appellant,

against

DAYID H. CLUM and Others, Respondents.

This was an action of ejectment for lands of which Dr. Peter O. Eisenlord died seized. The lands were situate in Montgomery county. The jury rendered a verdict in favor of the plaintiff. Thereupon a motion was made by the defendants upon the minutes at the same circuit to set aside the verdict and grant a new trial. Mr. Justice Fish, who presided, granted the motion upon the ground, as stated by him in his opinion, “ that the verdict is not sustained by the evidence, hut is contrary to and against the evidence.” The evidence in this case was substantially a repetition of that which was given in the previous case in Fulton county above considered. In this case, however, the plaintiff was permitted to read in evidence the judgment-roll in the seduction case of Lipe v. Eisenlord.

This case was argued with the preceding one and by the same counsel.

Landon, J :

The learned trial judge set aside the verdict and granted a new trial upon the ground that the verdict was against the clear weight of the evidence, that is, “ contrary to the evidence.” (Code Civ. Pro., § 999.) The testimony, in his opinion, does not show that Dr Eisenlord and Margaret Lipe were married in June, 1857, by Justice Mosher. We have read the testimony, and without the aids which the trial court had of witnessing the trial and receiving those impressions, respecting the truthfulness and reliability of witnesses, which come from personal observation, we cannot resist the impression that the strong probabilities are that the story of the secret marriage is not reliable.

In addition to the error which we have pointed out in the Fulton County Case, and which was repeated in this, we observe that in this case the judgment record in ,the case of Lipe v. Eisenlord was, upon the offer of the plaintiff, received in evidence. It is true that at the close of the testimony the plaintiff’s counsel asked leave to withdraw the judgment record, but the leave was not granted. The judgment record was not formally read to the jury, but the fact of its existence, and the character of the issue determined by it, were fully disclosed. It was shown that upon that trial Margaret testified that she was unmarried, that Dr. Eisenlord was her seducer. It was also shown that Dr. Eisenlord lay in jail for some time upon the execution issued upon the judgment, and that a portion of its proceeds were paid to Margaret. Reference to the report of that case in 32 New York, 229, will indicate its character. It was commenced after the birth of this plaintiff, by the father of Margaret, against Dr. Eisenlord, to recover damages caused by his alleged seduction of Margaret. If the verdict given in this case is true, then Margaret and Dr. Eisenlord had been married four months before the plaintiff was born. That action rested upon the quasi fiction, which the law favors, m order to bring to justice the violator of social order and the destroyer of the peace and honor of the family relation. When the alleged seducer atones for his offense and repairs it by marrying Ins victim, the law no longer tolerates the fiction upon which the parent’s action rests, but, in obedience to the obvious demands of the best public policy, ignores and suppresses it. It bids the offended parent to be still, out of regard to the best interests of his child and of domestic and social relations generally. If he has any cause of action, it is against the husband for the support of his wife and child. Suppose Margaret’s father had brought the latter action against Eisenlord and had recovered. Is it to be doubted that it would have practically settled the question of marriage forever ? Why ? Because Dr. Eisenlord would then have had his day in court in which he could have raised and have had that question decided. His status respecting Margaret would have been decided. His status respecting Margaret would have determined his status respecting their child, this plaintiff. By the common law the condition of the child follows that of its father. If the father is married to the child’s mother before the birth, of the child, the child is presumed to be the legitimate child of the husband. If born out of wedlock, the child is füms nuUms, and cannot even inherit from its mother, unless the statute so declares. Hence the status of the father with respect to the mother being ascertained, that of the child is enevitably determined. Our statutes enable the husband, in an action for divorce against his wife upon the ground of her alleged adultery, to question the legitimacy of the child born after the alleged adultery and to have it determined as one of the issues in the action. (Code Civ. Pro., § 1760, 2 R. S., m. p. 145, § 44.) Such decrees have been made. (Cross v. Cross, 3 Paige, 139; Van Aernam v. Van Aernam, 1 Barb. Ch., 376.) Rule 76 regulates the practice. The child has nothing to say upon such an issue. He comes into the world doomed to abide the status fixed for him by his parents, so far as his legitimacy is concerned. The plaintiff by introducing this judgment-roll proved the status of his father with respect to his mother, months after he was born, and, therefore, at the time of his birth. He proved that the connection between them was meretricious. It is true that his mother was not a party to that .action, but it was not needful that she should be. The plaintiff abides the condition of his father1. "We need not, however, now hold that this judgment record is conclusive in regard to the status of Hr. Eisenlord. That it .is competent evidence against this plaintiff of a very high kind we do not doubt. Dr. Eisenlord had his day in court respecting the matter, under such a pressure of interest as does not permit us to doubt that the truth, if it was as it is now claimed to be, would have been disclosed. We, therefore, the more readily concur in the order made by the trial court setting ■aside the verdict and granting a new trial.

Order affirmed, with costs of this appeal.

LbaeNbd, P. J.:

I concur in the opinion in the first case and in the result in the second case. I see no reason to disagree with the conclusion of the learned justice who set aside the verdict and granted a new trial. The plaintiff, after giving in evidence the judgment in Lipe v. Eisenlord, asked leave to withdraw it, and it was not read. Whether it would be evidence against Mm if offered by defendants in another trial I am not willing to say

INGALLS, J.:

I concur in the result reached by my brother Landon in both appeals.

Order affirmed, with costs.  