Thomas Funson, as Administrator, etc., of Frank Boyce McCarthy, Deceased, Respondent, v. Thomas C. Salisbury, Appellant

Thomas Funson, as Administrator, etc., of Frank Boyce McCarthy, Deceased, Respondent, v. Thomas C. Salisbury, Appellant. Personal transaction with a deceased person— competency of testimony of an interested witness which negatives it. Upon the trial of an action in which the principal controversy was as to whether the plaintiff's intestate or the defendant owned a mare, the plaintiff proved that the intestate, before her death, showed to a witness a paper which, appeared to be a bill of sale of the mare from the former owner to the defendant, and another paper which appeared to be a bill of sale from the defendant to the intestate; the defendant, with a view to contradicting this witness, was asked whether he ever signed such a bill of sale. Held; that he should have been allowed to answer the question, although the result might be to negative the occurrence of a personal transaction between himself and the deceased. Appeal by the defendant, Thomas C. Salisbury, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 29th day of May, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of June, 1896, denying the defendant’s motion for a new trial made upon the minutes. The action was brought to recover the possession of a mare known as “ May Queen,” a horse known as “ Richie,” a carriage and two sets of harness. The principal controversy was in regard to the ownership of the mare “ May Queen.” The defendant contended that he was the owner thereof, and had purchased it from a firm known as Ensign & Tefft, taking from them a bill of sale therefor, and had loaned it to the plaintiff’s intestate, Mrs. McCarthy. Upon the part of the plaintiff it was contended that the defendant had purchased the mare for the plaintiff’s intestate, a Mrs. McCarthy, and that she had furnished the defendant with the money to purchase it with; this was denied by the defendant. Upon the trial a witness named Leonard testified that prior to her death Mrs. McCarthy exhibited to him a paper, which was so described by him as to indicate that it was a bill of sale, from Ensign & Tefft to the defendant, of the mare “ May Queen; ” also another paper so described by him as to indicate that it was a bill of sale of the mare “ May Queen ” from the defendant to Mrs. McCarthy. The defendant being examined as a witness in his own behalf was asked the following questions : “ Q. Did you ever sign any bill of sale of ‘ May Queen ? ’ [Objected to as calling for a transaction of deceased. Objection sustained. Defendant excepts.] I heard the testimony of Jacob Leonard. Heard him refer to a paper which he described as a bill of sale. Q. Did you ever sign your name to any such bill of sale or instrument? [Objected to as incompetent. Objection sustained. Defendant excepts.] Q. Did you ever sign any bill of sale to anybody of the mare ‘ May Queen ? ’ [Same objection, ruling and exception.] ” T. F. Hamilton, for the appellant. William S. Ostrander, for the respondent. [MAJORITY — Herrick, J.:] Herrick, J.: I think the exclusion of the evidence offered was error. The testimony offered was not independent affirmative evidence of a transaction between the defendant and the deceased for the purpose of establishing an affirmative defense, but was for the purpose of contradicting the testimony of the witness Leonard by showing that what he testified to, to wit, seeing a bill of sale signed by the defendant, could not be true. It does not come within the spirit of section 829 of the Code of Civil Procedure, which was to prevent the survivor of an interview from giving a version of it that could not be contradicted. (Holcomb v. Campbell, 118 N. Y. 46, 54.) The defendant had a right to contradict the evidence of the witness' Leonard by testifying to facts showing that his story could not be true, even although the ultimate result of such testimony was to negative the occurrence of a personal transaction between himself and the deceased. (Pinney v. Orth, 88 N. Y. 447; Lewis v. Merritt, 98 id. 206, 210.) The judgment and order should be reversed and a new trial granted, costs to abide the event. All concurred. Judgment and order reversed and a new trial granted, costs to abide the event.