Philip Kraushaar, et al., Executors, etc., Respondents, v. Henry L. Meyer, Impleaded, etc., Appellant

Philip Kraushaar, et al., Executors, etc., Respondents, v. Henry L. Meyer, Impleaded, etc., Appellant. Although a party is not incompetent under section 399.of the old Code to testify to an independent conversation between the deceased and a third person, yet if he participated in the conversation and it related to a transaction between him and the deceased, he is incompetent. Accordingly, held, where in the course of a business transaction between plaintiff's testator and defendant M. the deceased made certain statements to V., who was engaged in drawing up papers between the parties in regard to such transaction, and which statements were in reference to it, that M. was incompetent to testify thereto. "Where the amount of an extra allowance is by inadvertence slightly in excess of the amount allowed by the Code (sec. 309, old Code), this court will not interfere on appeal; the error should be corrected by motion to correct the judgment. (Argued January 17,1878; decided January 29, 1878.) This was an action to foreclose two mortgages executed "by defendant Moyer to Francis H. Kayser, plaintiff’s testator. The principal questions were disposed of upon the facts. Upon the trial defendant Meyer testified to certain statements made by the deceased to one Vollmer. Volkner it appeared was at the time engaged in drawing papers between the parties in reference to a business transaction between Meyer and the witness, growing out of the mortgages and the debts they were given to secure ; the statements were made in reference to the transaction. Plaintiff’s counsel moved to strike out the evidence as incompetent under section 399 of the Code. The motion was granted. Held, no error ; the court stating the rule as above, citing Brague v. Lord (67 N. Y., 495). An extra allowance of $100 was granted ; this was slightly in excess of two and one-half per cent on the amount found due on the mortgages as allowed by section 309 of the Code. Held, that the excess was so small it must have arisen from inadvertence and did not require any interference here; that it should have been corrected by motion to correct the judgment. Frank Crooke for appellant. Wm. D. Veeder for respondents. [MAJORITY — Earl, J.,] Earl, J., reads for affirmance. All concur. Judgment affirmed.