152 N.E. 699 | NY | 1926
During his lifetime Edward A. de Laurent was the owner and in possession of certain French and Italian bonds and certain jewelry. He died in March, 1922. Neither the bonds nor the jewelry were among his effects. The plaintiff having been appointed administrator of the estate, the defendant was directed to appear under sections 205 and 206 of the Surrogate's Court Act to give information in regard thereto. She submitted an answer alleging that she was entitled to the property in question and was then examined. No further proceedings were taken before the surrogate but this action was begun in the Supreme Court for the recovery of the property. The issue was whether before his death the deceased gave the property in question to the defendant. On the trial, the defendant testified over objection and exception to a personal transaction with the deceased and to an oral gift made by him in the course of these transactions to her of the property in question and of its delivery to her. In this she was corroborated by her daughter and three letters were offered in evidence by her signed by the deceased in each of which he stated that at his death he gave to the defendant the bonds in question and the jewelry. She and her daughter also testified that from 1920 she had had possession of the bonds and from 1921 of the jewelry. Witnesses for the plaintiff had testified, however, not only that long after this time, a ring, the most valuable piece of jewelry in question, had been seen in the possession of the deceased, but that immediately after deceased's death the defendant had denied on one occasion that she knew anything about the bonds or jewelry and that on another occasion *133 she said that the ring had been given back by the deceased to some friend of his. At the close of the evidence a motion was made to dismiss the complaint. The plaintiff was asked what issues there were for the jury and indicated several. The defendant then moved for the direction of a verdict. This motion was granted, but no exception was taken by the plaintiff.
Prior to the year 1914, section 2709, Code of Civil Procedure, specifically provided that when a witness is examined in discovery proceedings in Surrogate's Court, all objections under section 829, Code of Civil Procedure, now section 347, Civil Practice Act, to his testimony as to the same transaction in future litigation were waived. When this section was re-enacted as section 2676, Code of Civil Procedure, now section 206, Surrogate's Court Act, this provision was eliminated. While we may speculate that this was done because the Surrogate's Court was then vested with jurisdiction to try the issue of title and that it was anticipated that no other or future litigation would follow, the obdurate fact remains that it was repealed. The rule as to waiver is, therefore, to be found in section 829, Code of Civil Procedure, now section 347, Civil Practice Act, and not elsewhere. If defendant had proceeded to the trial of the issue of title in Surrogate's Court, she would have been competent to testify in her own behalf after the plaintiff had opened the door by examining her as to the same transactions. If on the trial of this action, plaintiff had offered in evidence the testimony of defendant taken in the discovery proceedings, defendant would have become a competent witness to the same transactions. But defendant must stand on the provisions of section 347, Civil Practice Act. On the the trial of the action she shall not be examined in her own behalf or interest concerning a personal transaction or communication between herself and the deceased. The administrator may waive this provision by testifying in his own behalf or by examining defendant on the trial *134 of the action as to such transaction. He did neither. Therefore, the evidence of defendant was incompetent.
The evidence was prejudicial. While we may not review the direction of a verdict in favor of defendant in the absence of an exception, we may properly indicate for the guidance of a further trial, that the evidence for the defense without her testimony did not point so conclusively to a gift as to require the court to direct a verdict for the defendant.
The judgments should be reversed and a new trial granted, with costs to abide the event.
HISCOCK, Ch. J., CARDOZO, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.
Judgments reversed, etc.
