#### George R. Wakefield, as Administrator of Mary A. McClaughry, Deceased, Appellant, *v.*Arthur C. Wakefield, Respondent.

(Supreme Court, Appellate Term,

April, 1905.)

Evidence — Personal transaction with decedent — Testimony of administrator to establish claim.

In an action by an administrator to recover the amount of an alleged loan made by his intestate, the testimony of the plaintiff as to a conversation between the decedent and defendant at which he was present is competent to prove the fact of the loan.

Appeal by the plaintiff from a judgment of the City Court of the city of New York, rendered in favor of the defendant, and also from an order denying plaintiff’s motion for a new trial.

Mayer & Gilbert (A. S. Gilbert, of counsel), for appellant.

Emmet & Robinson (Grenville T. Emmet, of counsel), for respondent.

Scott, J.

The judgment in the court below'proceeded upon a misapprehension and misapplication of section 82!) *88of the Code of Civil Procedure. The plaintiff and defendant are brothers, and Mary A. McOlaughry, now deceased, of whose estate plaintiff is administrator, was their sister. The complaint alleges that the decedent in her lifetime loaned defendant the sum of fifteen hundred dollars which he promised to pay on demand, but has not paid. The answer denies that such a loan was made, but sets up no affirmative claim against the estate. On the trial the plaintiff undertook to prove the fact of the loan by testifying to a conversation at which he was present between the decedent and the defendant. This evidence was objected to by defendant and excluded upon the ground that it was an attempt to introduce evidence of a personal transaction with a deceased person by a party interested in the estate. Subsequently the learned justice who presided at the trial entertained a motion for a new trial, which he denied, writing a somewhat elaborate opinion reaffirming the ruling made upon the trial. This precise question has recently been directly passed upon by the Court of Appeals. McLaughlin v. Webster, 141 N. Y. *76.*In that case the plaintiff made a claim against the estate of a deceased person for whom the defendant was not only an executor, but also one of the residuary legatees. This defendant was examined as a witness in his own behalf touching a conversation which he had with the deceased in his lifetime, in presence of the plaintiff. The same objection was taken as in the present case, and overruled, and this ruling was approved. In the course of the opinion the court said: *“*This section (829) prohibits parties from giving testimony in their own behalf or interest *against*the personal representatives of a deceased person, concerning a personal transaction or communication with the deceased, but it does not prohibit an executor or administrator, who is a party to the suit, from being examined in favor of the estate touching such a transaction, when the adverse party was present participating, and when it is otherwise competent. It opens the door for the admission of testimony from adverse parties that would otherwise be excluded, but if the personal representatives of deceased elect to take such risk they have the right to do so.” Except that the admin*89istrator in this case is plaintiff, and the executor in that case was defendant, which of course does not affect the principle involved, the case above cited is on all fours with the present case, with the' single difference that so far as the record shows the defendant here is not deriving or claiming any title or interest from, through or under the deceased. He does not admit that the decedent gave him money, and that for any reason he is entitled to retain it. He simply says that she did not loan him the sum sued for. The evidence offered was clearly admissible and should have been received, and for its exclusion the judgment and order appealed from must be reversed, with costs, and a new trial granted.

Leventbitt and Gbeenbatjm, TJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.