Nearpass v. Gilman , 23 N.Y. Sup. Ct. 121 ( 1878 )

BakNard, P. J.:

Theodore F. Brown died holding certain notes made by defendant. These notes were in fact signed by Alfred Gilman in defendant’s name, and as defendant’s agent. Alfred Gilman was a proper witness upon the trial of the action brought to recover the notes, by the administrator of the deceased, against the maker of the notes. The agent was not a party, and he was not interested in such a manner as to exclude him on that account. The judgment, either way, would have no direct legal effect upon the agent, and the record of the judgment would not be evidence for or against the agent in any other action to which he might be a party.

One of the notes described in the complaint was made by defendant payable to the order of Edward Freedman. After it was indorsed by him it was transferred to plaintiffs intestate. Freedman was received as a witness upon the trial, to prove that this particular note had been paid to Theodore F. Brown in his life-time. The testimony received from Freedman to evidence such payment, was a declaration made by deceased in the presence of Freedman and defendant. Freedman had never been charged as indorser, and therefore he was not interested in the suit. (Stark-wheather v. Matthews, 2 Hill, 131.) He was not a party to the record. He was not called on behalf of the plaintiffs, who had succeeded to the title to the note from and through him. Section 829 of the Code of Civil Procedure only prevents a person from whom a party derives title from being a witness “in his own behalf or interest, or in behalf of the party succeeding to his title or interest.” Freedman does not seem to fall within this prohibition. The remaining question presented is one of fact. The evidence is sufficient to sustain the findings of the referee. It is very conflicting, but if no rule of law was violated upon the trial, the case is one where the decision of a careful referee should stand.

Judgment affirmed, with costs.

GilbeRT and DykmaN, JJ., concurred.

Judgment affirmed with costs.