74 N.Y.S. 101 | N.Y. App. Div. | 1902
This action is to recover upon a policy of accident insurance issued by the defendant upon the life of the husband of the plaintiff.
The plaintiff in rebuttal offered in evidence a certain letter, dated May 15, 1890, and written to the assured by his deceased brother. In the letter was written: “ In reply to your inquiry about your age, I cannot tell you positively. Nor doe (sic) I know where the family register is. You must have been born in 1833, and are now 58 years old.” The learned counsel for the defendant objected to the reception of the letter on the ground that it was not evidence and was not shown to be in the said brother’s handwriting. After proof of the handwriting, the letter was received in evidence under exception. I am of opinion that the ruling was erroneous. The admission of such testimony must be justified by some rule or exception in derogation of the general rule that excludes hearsay testimony. The learned court did not state the grounds of its ruling, but as concededly the only question before the jury was the age of the testator, the letter must have been admitted on the ground that in this action age could be proved by hearsay. The learned counsel for the respondent seeks to maintain the ruling by citations from Phillipps on Evidence. Thus, the learned counsel says: “ The letter * * * was competent proof of the age of Jason Bowen within the rule stated by Phillipps. He says: ‘ Another subject whereon statements are receivable upon the credit of deceased persons who have neither been sworn to the truth of those statements, nor been cross-examined respecting them, relates to matters of pedigree,’ ” (1 Phillipps Ev. [C. & H. & E. notes] 248) and then continues with quotations which in express terms refer to cases of pedigree. The exception to the rule, or the rule itself (as some writers have it), that hearsay testimony is evidence in cases of pedi
Judgment and order reversed, and new trial granted, costs to abide the event. ■
All concurred, except Hirschberq, J., taking no part.
Judgment and' order reversed, and' new trial granted, costs to abide the event.
Sic.