Manning v. Schmitt, 38 N.Y.S. 640

Manning v. Schmitt

38 N.Y.S. 640 | N.Y. App. Div. | 1896

Williams, J.:

It was clearly erroneous to permit defendant to testify to personal •interviews with the member of plaintiffs’ firm, who. was, at the time óf the trial, deceased. Section 829 -of the Code.of Civil Procedure ¡prohibits, the giving of such evidence. It cannot be claimed that the objection was not brought to the attention of the court with sufficient ■clearness.' When the subject first arose, the court,said : “ Strike out ■the-testimony that he had this, conversation with a-man who is alleged to be-dead.”' The next time the question was presented, the. objection-was put upon the express ground that it already appeared that the conversation was with the partner who had since died, and. the court said-.: “ If you want to put that in, I shall allow you to *133do it; * * * but, at the same time, I say, as I have said before, it is extremely doubtful, and I do not see that it is necessary to your case. If you think it is, and want to take the risk, I will allow it.” And, again, when the later interview was offered to be proven, and objection was made that it was within the provisions of the statute, the court said : “ If you want to take the risk, I will let it go in.” The objections were not very definite. They might have been more specific, but it is apparent that the court was fully apprised and was well aware of the grounds of the objections. They were grounds which in no way could have been obviated.

The defendant was incompetent to give evidence of either of these interviews, and it was error to permit him to give it. For this error, the judgment should be reversed anda new trial ordered, with ■costs to appellant to abide event.

Van Brunt, P. J., Barrett, Rumsey and Patterson, JJ., ■concurred.

Judgment reversed and new trial ordered, costs to appellant to ■abide event.