#### William H. Nearpass, *et al.,*adm’rs, Appl’t, *v.*Winthrop W. Gilman, Resp’t.

*(Court of Appeals,*

*Filed March*1, 1887.)

1. Evidence — Admissibility of — Code Civ. PRO., § 829.

An action was brought to recover on a promissory note claimed to have been executed by defendant through his general agent. The latter was called as a witness on behalf of the defendant to prove payment, and his evidence, which involved personal transactions and. communications with plaintiff’s intestate was admitted. *Held,*no error. That Code Civ. Pro., § 829, did not apply. ■

2. Same — Endorser — When a competent witness under Code Civ. Pro., § 829.

The drawee and endorser of said note, who was not a party to the action, was offered as a witness in behalf of the maker of the note. *Held*that the fact of his endorsement did not even make him presumptively liable on the note. That he was a competent witness unless the plaintiffs showed that his liability as indorser had arisen or was an open question.

Appeal from a judgment of the supreme court, general term, second department, affirming a judgment of tlie special term, in favor of defendant, entered upon the report of a referee.

*John W. Lyon,*for appl’t; *Lewis E. Carr,*for resp’t.

Finch, J.

Two questions of evidence are presented by this appeal. The action was brought to recover the amount claimed to be due upon two checks and two notes claimed to have been executed by the defendant through his general agent, Alfred Gilman. The latter was called as a witness on behalf of the defendant to prove payment, and his evidence, which involved personal transactions and communications with the plaintiff’s intestate, was objected to for that reason, but admitted under an exception by the defendant. The witness was not a party to the action and his testimony prohibited by section 829 of the Code for that reason, but it is urged that he comes under its description of “ a person interested in the event.”

It is argued that if the defense failed tthe agent would be liable to his principal for a misappropriation of funds or negligence in permitting the evidence of payment. Assuming that a possible liability of the witness upon one or the other of these *746grounds might exist, it is obvious that it would find its origin in facts, gaining, no effect or potency from the event of the action or the judgment for the plaintiffs in which it might terminate.

That judgment could not bind him directly by its own force, nor indirectly as evidence against him. It might prove to be the occasion or cause of a suit against him by his principal, but in defending that suit he would, be utterly unaffected by the judgment against his principal and entirely at liberty to show a payment in fact made by him with his principal’s funds and explain the failure to take up the notes and checks. The judgment against his principal would not hamper or affect him in the least. The correct rule is stated in *Hobart*v. Hobart, *62*N. Y., 80, that the disqualifying interest must be not merely in the question involved, but in the event of the particular action pending; such that the witnesses will either gain or lose by the direct legal effect and operation of the judgment, or that the record will be legal evidence for or against him in some other action. A fair example of such a case is that of a surety on an executor’s bond who is bound by the surrogate’s decree upon the accounting. *Miller*v. Montgomery, 78 N. Y., 283. But Gil-man was not bound directly by the judgment, nor indirectly by it as a matter of evidence. He was at liberty to dispute as against himself the facts upon which it rested. His possible interest in the question involved did not make him interested in the event of the action.

One of the notes sued was drawn to the order of Edward Freedman, and was indorsed by him. He was not a party to the action. He was offered as a witness in behalf of the maker of the note. Assuming that plaintiff’s intestate derived title to the note through or from the indorser, although if merely an accommodation indorser, as is alleged, the assumption might perhaps be challenged, yet the witness was not called or examined in behalf of the party succeeding to his title or interest but against that party. It is claimed, however, that Freedman was exam-ed in his own behalf and had an interest in the event of the action by reason of his position as indorser. But the fact of his. indorsement merely did not make him liable on the note and we think not even presumptively so. Until the note was duly presented and protested for non-payment and due notice given, the indorser was not liable at all. At the date of the trial the note was long past due and Freedman charged as indorser or discharged by the omission of protest and notice. He says he received no notice. Presumptively, therefore, none was sent.. If the plaintiff had shown that his liability as indorser had arisen, or possibly even that a claim of protest and notice in good faith existed so as to leave the question of liability open, it might be urged that he had an interest in proving payment, but until *747something of tbe kind appeared be stood not at all in tbe attitude of one interested in tbe event of tbe action and examined in bis own bebalf. The general rule excludes no one on account of interest. Whoever would close the mouth of a witness must place him within tbe boundaries of tbe exception. This was not done. The court could not pronounce him disqualified upon tbe facts before it, for nothing appeared raising even a presumption of an interest in bebalf of which bis testimony could operate.

No other questions need to be considered. The judgment, should be affirmed.

All concur.