Coller v. Wenner
45 Barb. 397
N.Y. Sup. Ct.
1865
Check Treatment
By the Court, E. Darwin Smith, J.

The only question presented or discussed by counsel in this case, is, whether the defendant, John Wenner, was properly admitted as a witness in Ms own behalf. He was admitted to prove a defense arising out of a transaction between himself and a deceased person, Jacob Coller, who was the payee of the promissory note in suit, lent the money for which it was given, and received the usurious premium set up as a defense. When parties were allowed to be witnesses for themselves, it was seen by the legislature that the rule would operate very unjustly if the survivor of two parties to a contract or other transaction was allowed, after the decease of the other party to such contract or transaction, to testify in regard to conversations and dealings with such deceased person. It was, therefore, expressly declared in section 399, as amended in 1857, when the right was first given for parties to be witnesses in their own behalf, that such examination should not be had unless the party or person in interest was living, and without ten days notice of the intended examination. Such would be the rule of obvious justice and common fairness. Section 399, *405with all its changes, and from its first enactment in' 1857, so as to allow parties to he witnesses in their own hehalf, I have supposed was framed and intended to produce this equality of rights between parties. But it seems to me that the legislature has entirely failed to carry out and secure this purpose or intent, by appropriate language, as the section now stands, if such was their intent in fact. Section 399 provides, in the first instance, that parties to an action may be examined as witnesses in their own behalf in the same manner as other witnesses. Then it provides that an assignee of a thing in action shall not be examined in behalf of a party, nor shall a party to an action be examined in has own behalf, in respect to any transaction or conversation had personally by said assignor or said party, respectively, with a deceased person. So far the language is clear and explicit, forbidding the examination of an assignor, or of a party to any transacr tion or conversation with a deceased person. If the section had stopped here, it would have covered this case; for Wenner, the defendant, was called to testify, and did testify, to a transaction and conversation with a deceased person with whom the original contract was made. But the section then proceeds in these words: “Against parties who are the executors, administrators, heirs at law, next of kin, or assignees of such deceased person, when they have acquired title to the cause of action immediately from said deceased person.” This part of the section is a clear limitation of the former part, and takes away the general limitation of the restriction of the right to testify in respect to any transaction or conversation with a deceased person, and qualifies such limitation by another term. It makes the restriction of the right to testify on the part of the living party to any transaction, when the other party to such transaction is dead, to depend upon the fact that the action is prosecuted by “an executor, administrator, heir at law, or next of kin or assignee of such deceased person, and when they have acquired title to the cause of action immediately from said deceased person.” *406These térras, clearly, do not apply to the plaintiff in this action. He is not an executor of the deceased person who was a party to the -transaction, Jacob Coller, and does not hold- and had not acquired title to the cause of action “immediately from the said deceased person.” The plaintiff derived his title to the note from John Coller, deceased, and not from Jacob Coller. The note was transferred in his life time by Jacob Coller to his son John, of whom the plaintiff is executor. The express language of the section takes away the restriction of the right to testify embraced in the previous terms, and leaves the defendant his general right, as a party to an action, to testify in his own behalf, in the same manner as any other witness. This view of the section affirms the decision at the circuit. This view of this section has before been taken at general term in this district, in the case of Fairchilds v. Avery, decided at the June general term, 1861. In that case promissory notes were given in California by Avery to one Williams, who transferred them to one Haight, who assigned them to the plaintiff Fairchilds. I held at the circuit that Avery—Williams being dead—was a competent witness in his own behalf, and the decision was affirmed at general term, but I do not find that the case was reported.

[Monroe General Term, December 4, 1865.

The motion for a new trial must be denied.

Johnson, J. C. Smith and E. D. Smith, Justices.]