33 N.Y.S. 138 | N.Y. Sup. Ct. | 1895
This appeal comes here under section 2718 of the Code as amended in 1893. The plaintiff, within the six months for presenting claims against the estate of the deceased, presented a claim of $300 for plans prepared by the plaintiff at the request of the deceased for the construction of a building in Rochester. The claim was rejected by the appellants, and an order was made referring it to a referee under this provision of the Code, who heard the evidence, and reported in favor of the plaintiff for the amount of his claim, upon which judgment was perfected, the referee awarding costs to the plaintiff. Upon the trial the plain
“I made the preliminary sketches. Mr. Putnam, who was with me at the time, completed the details. No one else in the office, except myself and Mr. Putnam, to my knowledge worked on these plans. I had a conversation with Mr. Filón about these plans. It was either in May or June, 1892. I had more than one conversation; several; three or four, I should think. Q. Did you draw these plans without being requested to do so by any one? (Objected to by defendants as calling for a transaction or communication between the witness and Michael Filón, and as incompetent under section 829 of the Code, it appearing that the witness is interested in the event of the action, and also that the question is improper in form and leading. Overruled, and exception.) A. No, sir. (Defendants’ counsel moved to strike out the answer as incompetent under section 829 of the Code. Motion denied, and exception.)”
The witness further stated that none of Ms conversations with Mr. Filón were in the presence of any other person, except one instance. It was, after this, conceded that Michael Filón died in July, 1893. The only other witness was Mrs. Putnam, the wife of the person who worked with the plaintiff on the plans. She says that she saw them at her house, and on the bottom of the plans there appeared the words, “Sketch for Mr. Michael Filón.” The plaintiff gave no other evidence, except the will of the deceased, which was objected to, the twentieth clause of which provided that the executors were authorized and directed to erect on Main street, in Rochester, a building costing not less than $1,000,000, to be known as the “Filón Block.” The plaintiff rested, but, after resting, resumed the case, and moved to amend Ms claim to conform to the proof, thus opening his case. This was denied, and the defendants then moved to strike out evidence on the ground that it involved a personal transaction with the deceased: First, the plaintiff’s testimony as to the value of the services. No objection appears to have been made to this, but the motion was denied. Defendants excepted. Second. What the witness Ellis testified to in reference to his having conversation with deceased about the plans. Plaintiff objected to this, on the ground that no objection was made at the time, and the motion was made after the close of the plaintiff’s case. This was denied; and the defendants excepted.
The grounds on the defendants’ appeal are: First, that the evidence as a whole fails to show any cause of action against the defendants, or any request on the part of the deceased to the plaintiff to make the plans, or facts from which such request might be inferred; and, second, that the referee erred in receiving evidence forbidden by section 829, and also in not striMng out such evidence.
It clearly appears that much of the plaintiff’s evidence comes within the spirit, if not the letter, of the prohibition of section 829, and, if this judgment is sustained at all, it must be upon such evidence. From the opinion of the referee, and the proceedings on
The referee seems to rely upon what the plaintiff testified to, that the plans were last seen by him in the office of the deceased. At no time does it appear that the deceased ever saw them. How they got there does not' appear. If they were delivered to the deceased by the plaintiff, or through his agency, it was a personal transaction excluded by the Code. Otherwise the evidence is of no importance as an admission by the deceased, or as an acceptance of the plans. If these plans were simply a “sketch,” as they were marked and submitted to the deceased for further examination or consideration, then the evidence does not aid the respondent.