4 N.Y.S. 568 | N.Y. Sup. Ct. | 1889
The testimony on the part of the plaintiff tended to show that Elisha Dorr, the defendant’s intestate, had boarded with her for upwards of six years prior to his death; that he had repeatedly stated that he was boarding with and had not paid her. The testimony on the part of the defendant was to the effect that Dorr did live or board with the plaintiff under an agreement which was fully performed by him, to the effect that he should, pay the expenses of the table and household in return for his board and lodging. Much testimony was given in support of these respective claims. The finding of the referee in favor of the plaintiff is within the evidence tending to establish her claim, and amply supported by it.
The only question we shall examine is whether certain testimony given by the plaintiff in support of her claim was properly admitted, under section 829 of the Code. She was permitted to testify, notwithstanding objection, that she paid for the meat, flour, and other family supplies, and that no other person paid for them. This testimony tended to rebut the claim which the testimony of the defendant tended to support—that the decedent paid for his board by furnishing such supplies. The defendant, the administratrix, had testified in her own behalf to conversations between the deceased and herself in the presence of the plaintiff at the house of the latter, in which the deceased spoke about buying tea and coffee, ham and pork, and the prices he paid for them. She also testified that on one occasion the deceased said to the plaintiff that he would buy a barrel of flour and some buckwheat the next time he went to the city; and that soon after the deceased and defendant went to the city, and deceased ordered a barrel of flour and some buckwheat flour, and they were placed in the wagon of the witness, and delivered to the plaintiff at her house; that she frequently saw the deceased carry baskets of groceries to the plaintiff’s house. Several of the next of kin of the deceased testified in behalf of the defendant to similar conversations between them and the deceased in the presence of the plaintiff, also to the purchase of household supplies by the deceased, and the delivery of them to the plaintiff.
The plaintiff then, as a witness in her own behalf, was examined respecting the same transactions between herself and the deceased, and his conver
But the testimony of the plaintiff does not, of itself, show that the plaintiff meant to be understood that she did not personally pay for the supplies. If defendant’s counsel had supposed her to mean that she paid for them through Dorr as her agent, he should have asked her if such was her meaning. If she had said, “Tes,” then the inadmissibility of the evidence would have appeared. But, as it is, her testimony seems to signify that she paid for them personally, and if so then that transaction was between herself and the tradesmen, and not between her and the deceased, and therefore not obnoxious to the provision of the Code. The objection was properly overruled.
The claim of the defendant that the plaintiff destroyed or abstracted any of the papers of the deceased does not appear to be established by the evidence. Judgment affirmed,with costs. All concur.