205 N.Y. 384 | NY | 1912
The action was brought to recover two certificates of deposit, one for a thousand dollars and the other for five hundred dollars, and a deposit book in the Mechanics Society, a savings bank, all of which instruments were in the name of the plaintiff's intestate, but in the possession of the defendant's intestate, who was alive and testified on the trial in his own behalf, but died pending this appeal. There was no indorsement or written assignment of the securities. The defendant's intestate had married a daughter of the plaintiff's intestate. She died intestate without issue before the death of her father. After the death of the father his representatives brought this action to recover possession of the instruments mentioned. The defendant's intestate claimed to own them by virtue of a gift made by the plaintiff's intestate to his daughter, to whose title the witness had succeeded by virtue of his marital rights, and on the trial was permitted to testify to a transaction or conversation between his wife and her father at which the father gave the daughter the instruments in suit and the credits which they represented. Hart testified that in this transaction and conversation he took no part, but accidentally witnessed it as he passed through the room in which his wife and her father were. The evidence was admitted over the objection of the plaintiffs, who contended that the witness was incompetent under section 829 of the Code of Civil Procedure. The Appellate Division by a divided court held the admission of this testimony erroneous, and for the error reversed the judgment and granted a new trial.
This section or its predecessor, section 399 of the Code of Procedure, has been in force for over half a century, and its interpretation the subject of numerous decisions in this and the other courts of the state. It might, therefore, be expected that the proper construction of the statutory provision had been authoritatively determined. Unfortunately the reverse is the case. The decisions are in irreconcilable conflict. The material part of the section *387
of the present Code provision is as follows: "Upon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title, by assignment or otherwise, shall not be examined as a witness, in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through or under a deceased person or lunatic, by assignment or otherwise; concerning a personal transaction or communication between the witness and the deceased person or lunatic; * * *." In Simmons v. Sisson (
An attempt was made by Justice CELORA E. MARTIN, of the Supreme Court, afterwards a judge of this court, to frame some rule which would harmonize the authorities. That effort is to be found in the opinion in Eighmie v. Taylor (68 Hun, 573). All the cases which had been decided up to that time (which was before the decisions in 140th and 141st N.Y.) are collated and reviewed with the thoroughness and acumen which marked the work of that learned judge. He harmonized the authorities on the theory that there were two different rules, one, that of the Holcomb, Eysaman andDunham cases, which applied in cases where a will or other instrument was contested on the ground of undue influence, restraint, mental incapacity or fraud, and another rule applicable to other cases. The objection to this view lies in the fact that the statute lays down but a single rule applicable to all cases alike; that in none of the conflicting decisions of this court has any distinction been drawn on account of the character of the litigation in which the question arose; and it is difficult to suggest any tenable ground on which such a distinction could be founded. The learned judge did not attempt to suggest any reason for the distinction. He felt his duty was to find some rule, if possible, by which the authorities could be reconciled.
A further ground is urged that a distinction can be drawn between two cases, one where the witness is interested at the time of the transaction or conversation to *394
which he testifies, and the other where the interest is acquired subsequently. The answer to this position is twofold. The statute draws no such distinction, but makes the disqualification dependent upon the interest the witness has at the time of testifying, either in the litigation or in its subject-matter. Next, the exact point has been determined by this court to the contrary. (Miller v. Montgomery,
It seems to me that we have arrived at a point in this war of conflicting decisions at which the controversy should be settled both in the interest of litigants and of the administration of justice by laying down some rule by which the courts can be guided. I think we can consistently and logically enunciate but one of two rules — that of the earlier cases based on what is claimed to be a strict construction of the words of the statute, that a witness is disqualified from testifying only in a transaction or conversation in which he takes actual part, or the other rule, that whatever he derives from the personal presence of the deceased by the use of his senses is a communication from the deceased to him within the meaning of the statute. The suggestion that if the witness is referred to in the communication it is a communication to him, but otherwise not, seems to me untenable. If a witness eavesdropping at a key hole overhears a conversation between the deceased and a third party, how can the question whether that conversation is a communication to *395
the witness be dependent upon the fact that the deceased or the other party refers to the eavesdropper, though ignorant of his presence? The distinction is repudiated in several of the later decisions of this court. I have already quoted from Chief Judge ANDREWS in the Bernsee case that such a distinction "would furnish an easy and convenient method in every case of evading the statute," and from Judge GRAY in the Dunham case that communications in the presence of the witness were inadmissible. As between the two constructions of the statute to which, in my judgment, we are limited, I think we should adopt that which excludes the testimony of an interested witness to any knowledge which he has gained by the use of his senses from the personal presence of the deceased. This construction is the one more consistent with the later decisions of this court. Indeed, a very learned judge thought that the law had become "well settled" by the decision in the Bernsee Case (supra). (See opinion of BRADLEY, J., Ditmars v. Sackett, 92 Hun, 381.) I think also it better carries out the object intended to be effected by the legislature. When the common-law rule which disqualified all interested witnesses from testifying was abolished, this exception to the general abrogation of the rule was enacted. The underlying reason of the exception is plain. While it was deemed wise to receive the testimony of witnesses, however biased by interest in the litigation, leaving their credibility to be determined by the court or jury, it was deemed unwise to allow an interested party to give testimony against the successor in interest of a deceased person relating to matters which the death of the deceased had placed it beyond the power of the adverse party to contradict. In other words, the object was to retain the equality between the parties which otherwise, under the new rule, would have been destroyed by the death of the deceased. InWadsworth v. Heermans (
I appreciate that, on the other hand, many persons advocate the admission of interested witnesses to testify to all matters, whether with a deceased person or with others, leaving the credibility of the witnesses to be determined *397 by the court or jury. Whatever may be said of this view it certainly is not the view which has been taken by the legislature, and of all rules a rule that permits an interested witness to testify to an act or statement by the deceased on which his rights depend, if he takes no part in either, but excludes him if he does, would seem about the worst. It is most easily evaded by the dishonest witness, while often fatal to the conscientious. Nor is the broad exclusion declared in the later cases of this court clearly an enlargement of the statute. Communication is not necessarily confined to conversations. Anything imparted by one to another is communicated by him, even disease. A personal communication, within the meaning of the section, was well defined by the Supreme Court in Price v.Price (33 Hun, 69, 73), as "any one which the surviving party claims to have received directly or indirectly from the deceased person, and which the deceased person if living could contradict or explain. Nor, in our judgment, is the mode of making the communication by the deceased to the survivor at all controlling." As section 399 of the old Code read before the amendment of 1862 (Chap. 460), it inhibited the witness from testifying to "Any transactions had personally between the deceased person and the witness." By that amendment it was extended to "any transaction or communication." Paraphrased in section 829 of the present Code it reads, any "personal transaction or communication between the witness and the deceased person or lunatic." "Transaction," as the provision stood originally, would have included a conversation, and the addition of the term "communication" must have been intended to extend the scope of the provision.
Under the views here expressed the admission of the testimony of the witness Hart relative to the alleged gift by the plaintiffs' intestate to the witness' deceased wife was an error, and for that reason the judgment was properly reversed. *398
The order of the Appellate Division should be affirmed and judgment absolute given against the appellant on the stipulation, with costs in all courts.
GRAY, HAIGHT, VANN, WERNER, HISCOCK and COLLIN, JJ., concur.
Order affirmed, etc.