98 N.Y.S. 658 | N.Y. App. Div. | 1906
The witness Reiners being a stockholder of the defendant (a business corporation), the objection of the plaintiff to the questions to. him concerning personal transactions between him and the deceased were properly sustained. He was not competent to testify that he did not put the deceased to work on the scaffold which it was claimed was furnished by the defendant and fell under him from defectiveness and caused his death, and the like. The test of interest in a withess under section 829 of the Code of Civil Procedure is the old common-law rule of interest, and that rule classed stockholders o.f a corporation as interested witnesses in favor of the corporation in an action by or against it (Gilbert v. Manchester Iron Mfg. Co., 11 Wend. 627). Such cases as Montgomery County Bank v. Marsh (7 N. Y. 481) and Washington Bank v. Palmer (2 Sandf. 686) are no longer alive or applicable. They were rendered under sections 351 and 352 of the Code of Procedure of 1848 (which became
The evidence that the scaffold gave, way under the deceased at all is of a very improbable character. There is none except by his son, an interested witness. He says that Reiners, a stockholder and officer of the defendant, called" him and his father from painting they were doing, in the defendant’s distillery, and set them to work^ painting the rear of one of a_row of tenement houses of the defend^ant in the rear of the distillery and fronting on the next street; that .the usual painter’s scaffold, about twelve feet long, was already" swung with ropes and pulleys about twenty-five or thirty feet from the ground ■; that he went to work on the ground painting the lowest part of the wall, while his father went to work, painting on the scaffold; that while, at work he heard a scream and a crash, and looking up saw that one end of the scaffold was two feet lower than the other and. resting on the coping of the roof of the .adjoining extension of the distillery^ and that his father was not to be seen ■; that he ran out to the street through the house they were painting, and thence around into the distillery and up to its roof through a scuttle, and found his father lying unconscious' there ; -that he
But the judgment cannot be sustained as matter of law. The defendant’s motion to direct a verdict at the end should have been granted. The verdict rests on nothing but the proposition that the mere fact of the descent of the end of the scaffold to the coping (if it occurred) was evidence from which alone it could be found that the scaffold fell from defectiveness. This is necessarily so, for there was no evidence of anything lacking, or of any defect or break in
The judgment and order are reversed.
Woodward, Jenks, Hooker and Rich, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide ■ the event.