Russell v. Russell

Herrick, J.:

The only question of consequence arising in this case is the one last referred to in the foregoing statement of facts, arising under section 829 of the Code of Civil Procedure.

“ The rule is that where an executor who is a plaintiff testifies in his own behalf to a personal transaction between the deceased and the defendant, then the defendant becomes a competent witness in his own behalf with respect to the same i/rcmsaction, but not other or different transactions.” (Rogers v. Rogers, 153 N. Y. 343, 350.)

I do not think that charging the matter upon his books in the absence of the person so charged, constitutes a personal transaction between the parties. Assuming, however, that it is such a transaction, it is a separate and distinct transaction from that of demanding payment of the amount so charged. The entry of an alleged indebtedness upon one’s books, and the demand from the person so-charged of its payrhent, are separate and distinct transactions, and the question asked of the defendant, and which .he was permitted to-answer, was as to a separate transaction from that testified to by the plaintiff, and should not have been admitted. The error was material, and for that reason the judgment should be reversed.

All concurred.

Judgment and order reversed and a new trial granted, costs to-abide the event.