Higgins v. Lynch

206 A.D. 773 | N.Y. App. Div. | 1923

Final judgment reversed on the law, and new trial granted, with costs to abide the event. The plaintiffs and the defendant were all persons interested in the event, ^† All of them claimed the proceeds of the bank account through their deceased mother. The court allowed two of the plaintiffs to testify, over objection and exception, as to conversations had between them and their mother, in the presence of the defendant, on material points in the case. Plaintiff Sheedy was allowed so to testify at folios 117, 119 and 125. Having ruled that plaintiff Rocco was not disqualified as a witness, the court allowed her to testify to like conversations at folios 165 and 166. The witnesses were interested in the event, and were, therefore, disqualified from testifying to any declarations made by the decedent even though made in defendant’s presence. (Hines v. Hines, 199 App. Div. 688; Mattel of Eno, 196 id. 131; Griswold v. Hart, 205 N. Y. 384.) This same rule would prevent the defendant from testifying to the delivery of the passbook to her a few days before the death of the mother. Kelly, P. J., Rich, Jaycox, Manning and Kelby, JJ., concur.

† See Civ. Prac. Act, § 347; formerly Code Civ. Proc. § 829.— [Rep.