In re Perkins , 160 N.Y.S. 54 ( 1916 )

Smith, J.:

Rose Fitzpatrick died intestate in the city of New York on August 27, 1906. Her estate is in the city treasury awaiting proof of ownership. The parties who on this petition claim to be entitled allege themselves to be cousins of Rose Fitzpatrick four generations removed from then common ancestor, one Patrick Cassily. He had a son, John Cassily, who is the ancestor of the claimants, and a daughter, Jane, who, the petitioner asserts, is the ancestor of the decedent. It is admitted that one Rose Donohue married John Fitzpatrick, and was the mother of the decedent, and, to link the families together, the claimants assert that this Rose Donohue was the daughter of Jane Cassily and one Stephen Donohue. • It is at this point that the difficulty appears in the lack of competent evidence to prove that Jane Cassily married Stephen Donohue and had a daughter Rose. To prove this, two of the claimants testified that their mothers and grandmother had told them that Jane Cassily married a Stephen Donohue and had a child Rose. This testimony is incompetent under the rule laid down in the case of Aalholm v. People (211 N. Y. 406) to the effect that declarations are competent only in case the declarant is proved by evidence dehors his own declarations to be a member of the family by blood or affinity which the declarations are “ intended to affect ” or “ concerning which he speaks.” This condition is not met here. The testimony of one Owen Cusack that he had heard that Jane Cassily had married a Stephen Donohue was pure hearsay and incompetent. The testimony of a Mrs. Meehan that she had heard the decedent say that she had cousins named Newman, the family name of some of the claimants, is too indefinite to be of any substantial value.

The proof, apart from the incompetent evidence, is clearly insufficient in law, and for the error in the admission of this evidence the judgment must be reversed and the matter remitted to the surrogate for further proof, without costs.

Clarke, P. J., McLaughlin, Scott and Page, JJ., concurred.

Decree reversed, without costs, and proceeding remitted to surrogate for further action in accordance with opinion.