Stern v. Eisner , 58 N.Y. Sup. Ct. 224 ( 1889 )

Van Brent, P. J.

This action was brought by the plaintiffs, as executors of the will of Elizabeth Eisner, deceased, to recover from the defendant the sum of $1,000, money loaned by the deceased in her life-time to the defendant; such loan being evidenced by the promissory note set up in the complaint. The answer denied any loan or indebtedness. Upon the trial of the action the defendant was examined as a witness on his own behalf, and he was asked whether he had ever been present when his mother, the deceased, was having a conversation with any one else about this claim, and he answered, “Yes.” He was then asked: “State what you heard her say, and to whom; that is, not yourself, but any one beside yourself.” This was objected to as conflicting with the provisions of section 829. The objection was sustained, and exception taken. He was then asked: “What conversation did you hear your mother have with your sister Mary about it?” Objected to on the same grourfd, objection sustained, and exception taken. This seems to have been error. In the case of Lobdell v. Lobdell, 36 N. Y. 333, where a similar question was asked of a party who was testifying, it was expressly held that such question did not come within the language of the section, and that under such circumstances the transaction or communication in question was not between himself and the deceased person, but between the deceased and a third person, and for that reason did not come within the provisions of the section. It is true there is a slight change in the language pf the Code as it existed at the time of .that decision, but there does not seem to have been any change which renders -the reasoning of that case inapplicable to the section of the present Code above referred to. The change of the language seems to have been only another instance of the many which are found in the present Code, where, for some unexplained reason, language well understood, and which had been interpreted by numerous decisions, is altered to satisfy the whim or caprice of the codifier; for no other reasonable ground can be given for making it. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide event.

Daniels, J., concurs.