117 N.Y. 91 | NY | 1889
The witness Lucy Mooney was not a party or privy to the action. She was, therefore, a competent witness to prove the alleged contract between the plaintiff and the defendant's intestate unless she was interested in the event, even assuming that her testimony involved a personal transaction between herself and the intestate. (Code, § 829.)
We think she was not interested in the event of the action within that section. In construing that section it has been held that the test of interest, where the witness is not a party, is that the witness "will either gain or lose by the direct legal operation of the judgment, or that the record will be legal evidence for or against him in some other action. It must be a present, certain and vested interest, and not an interest uncertain, *94
remote, or contingent." (Hobart v. Hobart,
The recovery of a judgment by the plaintiff in this action against the administratrix of O'Connor would not bar a subsequent action by the plaintiff against the witness to recover for the support of the child, nor would it establish that the expenses incurred by the plaintiff in its support were incurred under circumstances which precluded her from enforcing the common-law liability of the mother of a bastard child to provide for its support and maintenance. The fact that the support was furnished by the plaintiff under a contract with the father might constitute a defense to a suit against the mother. But a judgment against the administratrix of the putative father in this action, to which the witness was neither a party or privy, would not be conclusive upon the plaintiff in favor of the mother in a subsequent action against her, that the plaintiff furnished the maintenance under such a contract, nor, indeed, would the record be evidence that such a contract had been made. The evidence of Lucy Mooney tends to show that the plaintiff took the child as her own, acting in respect to it in loco parentis, thereby precluding herself from claiming that the maintenance was furnished on account of the mother and on her credit. We think the interest of the witness in the event of the action was, if any, "remote, contingent and uncertain," and was an interest in the question as distinguished from an interest in the event.
Without, therefore, considering whether the testimony of the witness was concerning a personal transaction between herself and the defendant's intestate, we think the judgment should be affirmed on the ground that she was not a party or a person interested in the event of the action within the meaning of the Code.
All concur, except RUGER, Ch. J., and ANDREWS, J., not voting.
Judgment affirmed. *95
