Hill v. Woolsey , 4 N.Y. St. Rep. 836 ( 1886 )

Barnard, P. J.:

This action is one against the sureties of the lessees, upon a hotel lease, for the rent. The landlord who made the lease was one McDonald, who is represented by the plaintiffs.

Two of the sureties answer. Woolsey Sherman and the other surety, Schoonmaker, appeal from the judgment. The answer of the two sureties sets up fraudulent representations made by McDonald, by reason of which the sureties were induced to sign the lease as sureties. ITpon the trial it appeared that Carpenter & Wise, the lessees, applied to the three sureties to become responsible for the payment of the rent. Woolsey, one of their number, requested that the lessees go to McDonald and ask for the amount taken in at the bar of the hotel in the previous years, when McDonald kept the hotel. They went and obtained the answers, and offered to prove the communication of the same to the two defending sureties. This evidence was objected to and excluded under section 829 of the Code of Civil Procedure. It appeared that the lessees were in possession of the hotel, and therefore were interested in the result, because a judgment in favor of the sureties would leave them in possession of the hotel, and a judgment against the sureties bound them. The witness Wise, one of the lessees, was incompetent to carry the message to the sureties. He could not testify to the representations made by McDonald to him. That was a clear personal transaction with a deceased party to the contract. As the agent of the sureties, being a party in interest, he could not repeat back the representations of the deceased. As an independent witness, he was excluded on his own account, as a party interested in the result. It is true, that if McDonald was alive he could not deny what Wise told the sureties in his absence, but he could deny the conversation, and the validity of the testimony depended upon the declarations of McDonald.

The judgment should therefore be affirmed, with costs.

Dykman, J., concurred; Pratt, J., not sitting.

Judgment affirmed, with costs.