(78 Hun, 532.)

#### RIEGLE v. BRATT.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Witness—Transactions with Decedent.

Where it did not appear, at the time evidence was received, that it involved a personal transaction with a decedent, that fact, subsequently appearing, does not render the reception of the evidence erroneous, but is ground for motion to strike out.

Appeal from Erie county court.

Action by Henry S. Eiegle against Hiram E. Bratt. From a judgment entered on a verdict in favor of plaintiff, and from an order *401denying a motion for a new trial, made on the minutes of the court, defendant appeals.

Affirmed.

Argued before DWIGHT, P. J., and HAIGHT, BEADLEY, and LEWIS, JJ.

Charles P. Tabor, for appellant.

George W. Cothran, for respondent.

LEWIS, J.

Laura E. Eiegle, the wife of the plaintiff, died at the town of Clarence, county of Erie, leaving a last will and testament, by which she bequeathed to the plaintiff $500, and her gold watch and chain. The property in question, consisting of an organ and some articles of furniture, she bequeathed to some female friends, and appointed the defendant executor of her will. The defendant qualified as such executor, and took possession of the property involved in this action, and the plaintiff thereupon brought this action against the defendant for conversion thereof. The defendant interposed an answer, claiming title thereto as executor of the will of the testatrix. The questions involved in this appeal arise upon the rulings of the court in the admission and rejection of evidence. The plaintiff, to maintain his action, called himself as a witness; and the following testimony was given, and proceedings had:

> “Q. Did you purchase an organ of Denton, Cottier & Daniels? (Objected to by defendant’s counsel on the ground that it involved a transaction between this plaintiff and the testatrix of the defendant, the deceased, and that the witness, being a party in interest, cannot, under section 829 of the Code, testify to a transaction which involved relations between him and the deceased. Objection overruled and exception taken.) A. Yes, sir. It was in April, 1891. It was an Estey organ, and the price was $40. I paid for it, and received the organ, and took it home that day. My home, at that time, was in Clarence. I took the organ to my father’s house at that time. It was on the 14th day of December. 1892. Where I lived, in the town of Clarence,—in my own house. Q. Did you purchase some household furniture from Hersee & Co.? (Same objection, and same ruling.)”

The witness testified that he purchased the furniture in question, and stated:

> “I left it there a short time. I paid for the furniture, and received this hill from the firm. (Paper shown witness.)”

The paper was headed, “Mr. H. S. Eiegle, Clarence Center, 3SL Y. Bought of Hersee & Co.,” and then followed the items of the furniture. Plaintiff’s counsel offered the bill referred to in evidence. It was objected to by the defendant’s counsel on the ground that it was simply the declaration in writing of Hersee & Co. The objection was overruled, the paper was received in evidence, and exception taken. The witness further testified that the furniture was sent to his home by rail; and he was permitted, under objection of the defendant, to read the bill of lading in evidence, showing that it was billed to him. The witness, on being cross-examined, testified that the deceased was his wife; that after their marriage they lived with the witness’ father; that he got some money from his father, when he came to Buffalo, to purchase the organ, after they were married; that he and his wife and his wife’s adopted mother came *402together, and picked out the furniture, but did not buy it that day, for the reason that he did not have money enough with him to pay for it; that he and his wife subsequently came with the wife’s adopted father, and that he bought the furniture for $75; that his wife was with him all the time, and that on that day she drew out of the bank about $890, which she delivered to the plaintiff; that he took out $40 or $50, and with that, and some money of his own, he paid for the furniture, and that the balance of the money, with the consent of his wife, he delivered to his own father, with the exception of some of it, which his wife retained; that he paid for the furniture right there, when his wife was present; that the furniture was used in the house where he and his wife lived until she died; that he paid $75 for the furniture,—$40 of it was his own money, and $15 or $20 of it he got from his wife. Thereupon, the defendant’s counsel moved to strike out all the evidence of the witness, upon his direct examination, as to the purchase of the property, on the ground that it involved a personal transaction with the deceased, it then appearing that the defendant claimed the property as executor. The motion was denied, and the defendant excepted. Plaintiff’s counsel then asked the witness the question:

> “2. When defendant's counsel asked you if you paid for the furniture, you stated that your wife stood near by. That don’t answer the question which he put to you,—whether you paid for the furniture, or whether she paid for it?”

Defendant’s counsel objected on the ground that it involved a transaction with the deceased. The objection was overruled, and the witness answered:

> ‘T paid for it.” *“Q.*Did you repay your wife the moneys you received from her, that were used in paying on this organ, and also the moneys that you received from her, and paid on the furniture?”

The same objection was interposed, and the court said:

> “Either the whole of it has got to be stricken out, or he has got the right to show that he has repaid it. One or the other. (Ruling reserved, and the defendant excepted.) A. Yes, sir. I was at my home on the 14th of December, 1802. Mr. Bratt came there. He removed the articles of furniture mentioned in this bill, and the organ. I forbid him to move them, but he took them, notwithstanding.”

The witness appears to have answered the question, notwithstanding the court reserved its decision as to its admissibility, and the defendant neglected to move to strike out the answer.

The plaintiff called other witnesses, who gave evidence tending to show that the plaintiff paid for the organ, and as to the valué of the property in controversy, and he then rested his case. The defendant introduced evidence tending to show that the deceased purchased the property. The court, in charging the jury, submitted to them the question as to whether the plaintiff or his wife made the purchase. The jury found for the plaintiff the value of the property.

■ There was nothing in the testimony given by the plaintiff upon his direct examination tending to show that he ever had a wife, or that the defendant was the executor of his wife’s will. His *403evidence, therefore, so far as it then appeared, was competent. The fact that it was subsequently made to appear that his wife was present on the occasion did not render the reception of the testimony erroneous. Whitman v. Foley, 125 N. Y. 652, 26 N. E. 725. Upon his cross-examination, it was disclosed that his wife was present with him at the time of making the purchases of the property in suit, and that he borrowed of her a portion of the money used in paying for the property. The borrowing of the money and the purchasing of the property were two different transactions. The transactions out of which the plaintiff claimed to become the purchaser of the property were between himself and the vendors of the property. The transactions upon which the defendant relies to exclude the plaintiff’s evidence consisted of the act of his borrowing money of Ms wife. That had occurred before the transactions with the vendors of the property. The transactions did not necessarily have any relation to each other. The evidence showing the borrowing of the money was called out by the defendant. The burden was upon the defendant to show the disqualification of the witness to give the testimony. Whitman v. Foley, supra. The defendant, at the close of the cross-examination of the plaintiff, moved to strike out all of his direct evidence as to the purchase of tb,e property, on the ground that it then appeared that it was a personal transaction with the deceased. The motion was denied, and the defendant excepted. The motion should have been granted, if, by the cross-examination, it had been established that the purchase of the furniture was a personal transaction between the plaintiff and the deceased. Mills v. Kemochan, 3 N. Y. St. Rep. 152; Knowles v. Erwin, 43 Hun, 150. We incline to the opinion that it was not error for the court to refuse to strike out the evidence, and that it was proper to submit the question to the jury as to who purchased the property. The defendant having called out from the plaintiff the fact that he borrowed money of his wife, which was used in the purchase of the property, it was not error to allow him to testify that he had repaid the money. The bill of sale and the railroad receipts were part of the transactions relating to the purchase of the goods by the plaintiff; and, while they were not very material evidence, we do not think it was error to admit them.

We have examined the other exceptions of the defendant, and find nothing calling for a new trial. The judgment and order appealed from should be affirmed. All concur.