#### Hammon Herrington, Resp’t, *v.*Catharine Winn, as Ex’rx, App’lt.

*(Supreme' Court, General Term, Third Department,*

*Filed May 21, 1891.)*

1. Evidence—Transactions with deceased person—Code Civ. Pro., §829.

A claimant against the estate of W. was allowed to show that figures, showing the price and numbers of certain cords of wood in suit, were entered in a book of W. by his son at his direction, and that they agreed with figures in a book of the claimant; the book of W. which had been produced on notice was admitted as evidence for the claimant. *Held,*error; that this was a personal transaction with W. within § 829, Code Civ. Pro.

2. Same.

The plaintiff in the action called the administratrix as a witness in his own behalf .and examined her as to the above transactions, which she substantially denied. Her own counsel on cross-examination inquired of her as to the physical condition of W. at the time. This was excluded. *Held,*error; that the condition of the testator was material upon the point whether the transaction took place, was a part of it and not objectionable under Code, § 829.

3. Same.

Such testimony upon his part did not entitle the plaintiff to testify as to the physical condition of the deceased at that time.

4. Same—Physicians—Code Civ. Pro., § 834

A physician, not the family physician of W., attended him once. He was called by the defendant to testify whether upon that day W. was conscious or unconscious. Decision was reserved. The physician was recalled and asked whether the information he obtained on that day was necessary to enable him to prescribe and whether he obtained any information at that time necessary for such a purpose. The questions were excluded. *Held,*that these latter questions were proper whether or not it ultimately turned out that the witness was competent to state the condition of W.

Appeal from judgment in favor of plaintiff, entered upon the report of a referes

*J. H. Hoag (R. A. Parmenter,*of counsel), for app’lt; *James C. Patton (Frank S.*Black, of counsel), for resp’t.

Learned, P. J.

This is a claim against the estate of Walter W. Winn, referred under the statute. The referee reported in favor of the plaintiff, and the defendant

Two questions are raised; the first, that the referee admitted evidence inadmissible under § 829 Code of Civ. Pro.; the second, that he excluded evidence, under § 834, which was admissible.

The plaintiff was called on his own behalf. A memorandum book of the deceased defendant was produced by defendant. The *84plaintiff testified that he saw the book in Winn’s house, and that Winn and Fred. Winn, the son, were present; that he saw pages sixteen and seventeen, and saw the figures put on those pages ; that Fred. Winn put them on, and that his father was present; that he also saw a “blank leaf,” paged 213 and 214 ; that he himself put the figures on that paper in presence of Winn and his son Fred.; that Fred, and plaintiff at that time compared the figures on pages sixteen and seventeen with those on plaintiff’s book, the number of cords of wood, and how much they came to; that Fred. Winn read the figures off aloud; that Winn directed Fred, to put the figures down in the book in plaintiff’s presence (that being plaintiff’s book); that on comparing the two books, that is, plaintiff’s book and defendant’s book and the “blank leaf,” the figures corresponded. The two books were then given in evidence by plaintiff.

The referee found that these entries, specifying them, were made by Fred. Winn in the presence and by the direction of the testator, and were read aloud by his said son in his presence.

The case shows that some of the evidence was taken subject to objection, and especially the question whether Winn directed Fred, to put down these figures in plaintiff’s presence was objected to as a transaction between deceased and the witness. The objection was overruled and defendant excepted. *Church*v. *Howard,*79 N. Y., 415.

The plaintiff insists that, if this testimony was objectionable when given, the objection was overruled by subsequent testimony given by defendant. We see nothing to justify this position. The cases cited by the plaintiff do not sustain it The plaintiff had himself called the defendant as a witness and had examined her as to the examining of accounts above referred to. She denied that it had taken place. This did not make the plaintiff competent to testify to the transaction. And after plaintiff had so testified her denial of such a transaction could not make his testimony competent if it had been incompetent before.

We are obliged, therefore, to inquire whether the plaintiff was competent to testify as he did. This was a personal transaction between plaintiff and the testator. The business was the examining and adjusting of accounts. That the testator acted through his son Fred, did not make the affair any the less a transaction with the plaintiff. The case of *Cary*v. *White,*59 N. Y., 336, is questioned in *Matter of Eysaman,*113 N. Y., 62 at 73; 22 N. Y. State Rep., 136. But even that case does not sustain the ruling here. And more recent cases condemn it See in addition to the case last cited, *Holcomb*v. *Holcomb,*95 N. Y., 316; *Matter of Dunham,*31 N. Y. State Rep., 858. The object of the testimony was to show that testator stated or acknowledged the amounts as correct And whether the plaintiff testified to this in direct words, or testified that the testator told his son to put down the figures after Fred, had read them aloud, the same result is obtained and the statute is equally violated.

After the plaintiff had examined Mrs. Winn she was cross-examined by her own counsel as to the condition of the testator at *85the time of the alleged transaction. Then the plaintiff was recalled and was asked on his own behalf as to the condition of the testator. This was objected to under § 829. Now Mrs. Winn’s testimony related to the same transaction'as to which she had been called by the plaintiff. The testator’s condition on the day of the alleged transaction was material on the question whether the transaction took place. She was entitled to give the testimony. Nay v. *Curley,*113 N. Y., 575; 23 N. Y. State Rep., 496. The question then arises, did this permit the plaintiff to testify as to testator’s condition. We think not. Mrs. Winn had not testified voluntarily. She came on the stand as plaintiff’s witness. She was, therefore, at liberty, without thereby prejudicing her own position, to testify to all the facts forming a part of the transaction. She would be much prejudiced if she could not do this without making the plaintiff competent, where by § 829 he would be incompetent. And the condition of Winn at the time of the transaction was a fact forming part of the transaction itself.

Another question arises as to the exclusion of testimony of Dr. Garland. He was a physician, and a friend of testator’s. He was not his family physcian. But he did attend him the 22d of December. He was called as a witness for the defendant and testified as to the unconsciousness and consciousness of testator.

The plaintiff moved to strike out this testimony. The referee reserved his decision. Afterwards the defendant recalled the doctor and asked him whether the information he obtained on the 22d of December was necessary in order to enable him to prescribe professionally ; also, whether he obtained any information that day which was necessary, etc. Defendant also offered to show by the doctor that the testator’s condition was such that any person of ordinary intelligence could understand it as well as a physician. These questions were objected to and excluded. And finally the referee struck out the doctor’s testimony. It is not necessary to repeat § 834. *People*v. *Schuyler,*106 N. Y., 298 at 304; 8 N. Y. State Rep., 860, cites approvingly *Edington*v. *Ætna Life Ins. Co.,*77 N. Y, 564, and holds that to exclude the testimony of the physician the party must show, among other things, that the information acquired by the physician was such as was necessary to enable him to act in his professional capacity. Under these decisions we do not see why these questions were not proper. Whether it would finally appear that the physician could, or could not, testify as to the testator’s condition is another matter. But he should have been allowed to explain as to the nature of the information. The decisions on this section are not entirely clear. And, indeed, it is not easy to draw the line between information obtained by a physician’s professional observation and such as would be plain to every intelligent observer, as suggested in the *Edington*case. But these questions excluded might have thrown some light on the nature of the information obtained by the doctor, and might perhaps have justified its retention.

The judgment should be reversed, referee discharged, new trial granted, costs to abide event.

Landon, J., concurs; Mayham, J., not acting.