#### Parks *et al. v.*Andrews *et al.*

*(Supreme Court, General Term, Fourth Department.*

April, 1890.)

L Witness—Competency—Tisansactions with Decedents.

On foreclosure of a land contract because of the non-payment of a balance alleged to be due thereon, brought by the vendor’s administrators against the vendee’s heir and administrator, the latter, who is also one of the heirs, is incompetent to testify that the vendor, in his life-time, never presented a claim against the vendee’s es*345tate for the balance due on the contract; Code Civil Proc. IT. T. § 829, providing that on “the trial of an action” a party or person interested shall not be examined in his own behalf against the administrator of a deceased person.

2. Same—“Trial of Action.”

The trial of a feigned issue out of chancery, before a jury, as to the amount due on the contract, is a “trial of an action, ” within the meaning of the above-cited section 829.

8. Appeal—Review—Harmless Error.

The payments indorsed on the contract showed that a large balance of the purchase money was still unpaid. In addition to the erroneously admitted evidence of the vendee’s administrator, the only evidence of payment consisted of alleged admissions to that effect by the vendor, to overcome which plaintiffs introduced admissions by the vendee that a large amount due on the contract had never been paid. *Meld*that, though Code Civil Proc. IT. T. § 1003, permits an appellate court to disregard an error in the admission of evidence where substantial justice has been done, the general term could not fairly say that the evidence, without the objectionable part, was sufficient to sustain a finding that the contract had been paid in full, and hence a new trial would be granted.

Appeal from special term, Oneida county.

Action by Horace C. Parks and Amanda Tinker, as administrators, etc., of J. Lee Tinker, deceased, against Clarence Andrews, individually, and as administrator of Josiah Andrews, deceased, and others.

The action is brought to collect, by foreclosure and sale, the amount due upon a land contract given on April 1, 1861, by J. Lee Tinker, plaintiffs’ intestate, to Josiah Andrews, defendants’ intestate, and one George Weyand. The amount to be paid was $2,714.25, and it all became payable on or before July, 1865. The plaintiffs admitted some payments, and claimed there was a balance due of about $3,000. In 1863, Weyand transferred all his interest to Andrews, who remained in possession until his death, in 1884. Tinker died in November, 1885, and his widow,, the plaintiff Amanda Tinker, afterwards became the owner of the fee. The heirs at law of Andrews and the administrator of his estate are defendants. Belief is asked as in mortgage foreclosure. The defendants in their answers allege that the contract was fully paid up before the death of Andrews. They also allege that in June, 1886, they tendered to plaintiffs the sum of $316.78, and demanded a deed, which was refused, and they ask a specific performance of the contract. In June, 1887, it was ordered, at special term, that the question, “What amount is now unpaid upon the land contract annexed to the complaint in this action?” be tried by a jury in pursuance of section 823 of the Code of Civil Procedure. Such trial was had in May, 1888, and the answer of the jury to the question was, “Nothing.” Thereafter, upon case and exceptions made and settled, the plaintiffs moved at special term for a new trial upon the exceptions taken, and upon the ground that the verdict was contrary to the evidence, and contrary to law. This motion was denied. At the same term the case came.on for the trial of the remaining issues, and for final judgment. The court adopted the verdict of the jury, declining to receive further evidence on that issue, and findings were made upon which judgment was entered dismissing the complaint, and directing that plaintiffs execute and deliver to the defendants a good and sufficient conveyance of the premises.

Plaintiffs appeal from the judgment, and from an order denying their motion for a new trial.

Argued before Hardin, P. J., and Martin and Merwin, JJ.

*William Kernan*and *W. A. Matteson,*for appellants. *William K. Scripture*and *Oswald P. Backus,*for respondents.

Merwin, J.

Upon the trial before the jury, the defendant Clarence Andrews was called as a witness on behalf of the defendants, and, having testified among other things that he was a son of Josiah Andrews, deceased, and was appointed administrator of his estate in May, 1884, was asked the question; “After the death of your father, did Mr. Tinker present any claim to *346you against your father’s estate?” This was objected to by the plaintiffs on the ground that the witness was incompetent and disqualified to testify by section 829 of the Code. The objection was overruled, and the plaintiffs excepted. The answer was: “2To, sir; he made no claim for anything due upon this contract to me.” By this ruling, the witness, who was an interested party defendant, was permitted, in his own behalf, to negative the existence of a transaction between himself and the plaintiffs’ intestate. This was not admissible. *Clift*v. *Moses,*112 N. Y. 427, 20 N. E. Rep. 392.

It is, however, suggested that the trial in this case before the jury was not “the trial of an action,” within the provision of section 829 of the Code. It was certainly a part of the trial. It was. the judicial-investigation off the main issue upon the merits. Its result was accepted by the court before whom the trial was completed. ÍTo reason is apparent why the provision of the Code should not apply. •

It is further suggested that the verdict is substantially right, and that the evidence, without the objectionable part above referred to, is sufficient to sustain it. It appears that the contract was executed in duplicate, each having a copy. Upon each of these some payments were indorsed. There were also payments from sales of certain portions of the premises, a,nd about five acres were taken back by Tinker in 1868, at a certain price, which was indorsed. Andrews also made some payments on mortgages that were on the premises, and were to be made out of thepurehase money. After applying all payments shown to have been so made, and deducting the amount of a mortgage still on the premises, there would still have remained, at the time of the death of Andrews, quite a large balance due on the contract, from eight to ten hundred dollars. Additional evidence was given, from which it was claimed, as matter of inference, that the whole was paid. The defendant Clarence Andrews testified that, upon three occasions shortly prior to the death of Andrews, Tinker called upon the deceased, and wanted to borrow small sums of money, and received at one of such times $10, and on each of the other occasions $20. Another witness testified that in the summer of 1885 Tinker said that, “ when the papers at the bank were paid up, Mr. Andrews was to have had his deed, and he was sorry he had not given it to him before Mr. Andrews died; sorry it had not been settled up before Mr. Andrews died.” There was a mortgage on the property, held by a savings bank, which was satisfied in 1882, to which, it was claimed, this conversation referred. Another witness testified that, soon after a sale of a portion of the premises to one Behr, from the proceeds of which the savings bank mortgage was paid, she called on Tinker for payment of a debt, and he said, among other things, “That place is all paid for;” referring, as it is claimed bydefendants, to the Andrews place in question, although from the cross-examination of the witness the inference is quite strong that reference was only made to that part which had then been sold. The defendants also read in evidence a portion of a deposition of the plaintiff. Amanda Tinker, in which she testified that, after Mr. Andrews died, Mr. Tinker said “that Mr. Andrews was to have had a deed when the Behr matter was settled up, and he wished he had given it to him.” The balance of this deposition was read by the plaintiffs, and it showed quite clearly from statements of Mr. Tinker that there had never been any settlement between Andrews and Tinker, of the amount due' on the contract, and that Tinker did not know how much was due. She also testified that Mr. Andrews and her husband never settled up the contract.

The foregoing, with the objectionable evidence above stated, was substantially the evidence from which the jury inferred that the whole, was paid. Clearly, there was never any settlement between the parties. The burden of showing payment was on the defendants. In view of the apparently large balance unpaid, it may be said, with considerable force, that the evidence to sustain a finding .that in some unknown way it was fully paid, was, to say the *347least, not very strong. This being the situation, the evidence of the defendant Andrews that Tinker made no claim against the estate of Josiah Andrews would naturally be deemed by the jury to be important, and we cannot say that it probably had no influence upon them in arriving at their verdict. On the part of plaintiffs, it was shown that in 1872 Andrews was insolvent, and testified in proceedings supplementary to execution that he had not been able to keep up the interest on the contract; that in 1882 and 1883 he stated to several persons, in substance, that there was a large amount due on the contract,—more than the farm was worth. Andrews was a justice of the peace and town-clerk, and had no business except working this farm. Tinker kept a store, and there was an unsettled store account between him and Mr. Andrews. Under section 1003 of the Code, an error in the admission of evidence may, in a case of this kind, be disregarded, if the court is of opinion that substantial justice does not require that a new trial should be granted. The evidence in this case is not sufficiently satisfactory to enable us to fairly say that substantial justice is done by the finding that the contract was fully paid up. Judgment and order reversed upon the exceptions, and new trial ordered, costs to abide the event. All concur.