#### George Beck, Respondent, *v.*Sarah E. Cooke, as Executrix, etc., of Justus Cooke, Deceased, Appellant.

(City Court of New York, General Term,

April, 1899.)

Evidence — Transactions with, a deceased person — Code Civil Procedure, § 829.

Where a chattel mortgagee brings an action against the executrix of a deceased person for the' alleged conversion by the deceased of the chattels mortgaged, the mortgagor is, as a person through whom the plaintiff derives title, debarred by the provisions of section 829 of the Code of Civil" Procedure from testifying on behalf of the plaintiff to a personal transaction or communication which she had with the *186deceased, tending to. show that she sold and delivered the chattels to him, and that he took possession of them.

Appeal from judgment in favor of plaintiff, entered on verdict of jury, and from an. order denying a motion for a new trial.

Benjamin & Loeser, for appellant.

Appell & Beid, for respondent.

McCarthy, J.

The complaint alleges that on August 22, 1894, one Sarah A.. Holker was the owner of certain furniture,, etc., which' she> on that ■ day, mortgaged to the plaintiff herein for a loan of $600, payable on demand; that on August 28,'1894, the chattel mortgage was duly filed in the New York county register’s office; that $275 was paid on account of the loan, leaving $325 due; that subsequently-to the giving and filing- of the chattel mortgage said Sarah A. Holker sold, transferred and delivered over said furniture, covered by the said mortgage, to the defendant Justus Cooke, who then took possession thereof; that plaintiff made demands of said sum of $325 upon Mrs. Holker and Justus Cooke, but payment was-ref used, whereupon plaintiff made demand upon the same parties for possession of the furniture, which was refused; that thereupon Justus' Cooke unlawfully sold and disposed of said furniture and converted it to his own use to plaintiff’s damage of $325.

The defendant Justus Cooke died on November 23, 1896 . This action was revived against his executrix.

The answer is a general denial.

The issues thus raised came on for trial on May- 24, 1898, and the proofs adduced by plaintiff substantiated his cause of action as alleged. But the proofs of-that part of plaintiff’s cause of action, relating to the sale and delivery of .the furniture by Mrs. Holker to Justus Cooke and to the latter’s possession thereof, were furnished by the testimony of Mrs. Holker *solely;*she was called as a witness on behalf of plaintiff, and testified as follows:

“ In November, 1894, I called on Justus Cooke and had a conversation with him,. which related to the furniture covered by the chattel mortgage.” She then gave the conversation, relating to the sale and delivery of the furniture by her to *t*and. the taking possession thereof by Justus- Cooke,- all of which testimony was admitted over the objection and exception' of defendant op the ground of incompetency under section 829 of the Code.

*187This was error. Mrs. Holker is the person through whom the plaintiff herein derived his interest or title to the subject-matter of this action. She is, therefore, not a competent witness in behalf of the plaintiff who succeeded to her title or interest, against the defendant, executrix of the deceased defendant Justus Cooke, concerning a personal transaction or communication between her and the deceased.

Judgment and order appealed from reversed, with costs to appellant to abide the event.

Sohuchman and Olcott, JJ., concur.

Judgment and order reversed, with costs to appellant to abide event.