134 N.Y.S. 825 | N.Y. App. Div. | 1912
The plaintiff has recovered judgment against the defendants as executors under the "will of Hannah O’Brien, deceased, for the sum of $10,000 after a trial before a jury in the Supreme Court in Westchester county. Her complaint demanded judgment for $10,000 and set forth two causes of action. In the
“ Hannah O’Brien Feby 23, 1910.
10,000
&
house.
Cody & Perry Conner.”
He testified that this memorandum was made on February twenty-first and the words “Feby. 23” meant the date on which he was to have the paper ready for execution by the decedent. When asked on cross-examination what was meant by the words “Cody, Perry and Conners,” he said.that they were names given to him by the decedent as her attorneys in New York “who had charge—who had originally made the will, or something of that sort. That is the only thing I know. That I put it down. They had charge of the house. ” Again he
To say the. least, it is quite beyond understanding that the witness should have put ¡down his own name as a “ third fiddle,” the one who ‘ ‘ had the j ob. ” It is likewise not very credible that he could not remember the meaning of his own memorandum and yet be so mindful that the decedent had used the word “agreement” when talking of the plaintiff. There was no pretense at the trial that any persons known “ Cody and Perry ” were ever the attorneys- or agents of the decedent. It appears too plainly for dispute that the witness was either evasive intentionally, or so confused and unreliable in his attempt to repeat actual happenings that his evidence On this point cannot measure up to the standard by which appellate -courts measure the proofs in such an action as this.; Doubtless he did call on the decedent and had some conversation with her as to the preparation of a codicil. There is other evidence in the record that at this time the decedent- had intended to make a codicil to her will. But his testimony was so inconsistent in important details, and the record thereof shows such a tendency to beat about the bush, with lack of candor in many particulars, that we deem it insufficient to support this judgment.
The learned counsel 'for the plaintiff sought to prove that the decedent had expressed a dislike for all or some of her relatives at various times. This testimony was scarcely rele- ■ vant to the precise question at issue. It was objected to whenever offered, and was admitted over exception. In one instance the record shows the following happening: The witness Dolan, called by the plaintiff, was asked by plaintiff’s counsel the following question: “ Did you ever have any conversation with Mrs. Hannah O’Brien about her living relatives and her relations with them?” This was objected to and the objection overruled and an exception taken, the defendant’s counsel saying: “We are going to take exception to that on the ground that this is an action based on a contract and that this testimony is immaterial.” To this the court replied: “I do not take it on the contract but to" show her condition of health. ” The witness answered - that there had been a conversation, giving no time or place. Then anew question was put: “ Now will you tell us what that conversation was; what she said about her relations with her relatives; whether friendly or not, and what you said ? ” This was objected to, the objection overruled and an exception taken. It is not quite clear to this court why the learned trial court allowed this line of testimony on the theory that it was relative to the decedent’s condition of health. Unfortunately, this incident was not ■isolated.
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Jenks, P. J., Burr, Thomas and Woodward, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.