Margaret C. Walize, Respondent, v. William B. Morton, as Executor, etc., of Chester S. Chase, Deceased, Appellant

Margaret C. Walize, Respondent, v. William B. Morton, as Executor, etc., of Chester S. Chase, Deceased, Appellant. Fourth Department, March 9, 1927. Evidence — admissibility — action for services rendered defendant’s testator— plaintiff’s son testified he was present when testator and plaintiff made contract and testified to contract — testimony of plaintiff that her son was present in house at time son testified he was there, was inadmissible, under Civil Practice Act, § 347 — error to admit testimony of third person that testator had asked witness to work in household. In an action to recover for services rendered by the plaintiff in the household of defendant’s testator under an alleged contract, the plaintiff’s son testified that he was present in his mother’s house when the testator came there and made the alleged contract, and he also testified as to the contract between the plaintiff and the testator. The testimony of the plaintiff that her son was present at the time he testified he was present related to a personal transaction and was-incompetent under section 347 of the Civil Practice Act and should have been excluded. It was error for the court to admit testimony of a third person that the testator had asked the witness to work in his household, for any transaction between the testator and said third person was irrelevent to the action here. Appeal by the defendant, William B. Morton, from a judgment of the County Court of the county of Monroe in favor of the plaintiff, entered in the office of the clerk of said county on the 12th day of November, 1926, upon the verdict of a jury. Charles E. Callahan [James K. Feely of counsel], for the appellant. Walter S. Forsyth, for the respondent. [MAJORITY — Sears, J.] Sears, J. Plaintiff has recovered a judgment against the defendant for services rendered by the plaintiff in the household of the defendant’s testator pursuant to a contract between the plaintiff and the deceased. We should affirm this judgment were it not for certain errors in the reception of evidence. The existence of the contract between plaintiff and the deceased was the basic matter litigated. The contract was established solely by the testimony of the plaintiff’s son who gave evidence that the deceased came to the plaintiff’s house during the last part of April or the first part of May, 1921, and there engaged the plaintiff to help his wife with her household duties. The plaintiff took the stand in her own behalf and was permitted to testify that the deceased came to her house in the spring of 1921, and that her son was also present at her house at that time. Proper objections were interposed to the questions which elicited this evidence to the effect that the plaintiff was incompetent to give the testimony under section 347 of the Civil Practice Act, and exceptions were taken. The objections were sound. The sole purpose of plaintiff’s evidence in this respect was to corroborate the plaintiff’s son by showing that the deceased, the plaintiff and her son Eugene were all present at the place and on the occasion mentioned by Eugene in relation to the making of the contract. Taken in connection with the statements of Eugene, the testimony related to a personal transaction. (Griswold v. Hart, 205 N. Y. 384; Kings County Trust Co. v. Hyams, 242 id. 405; Matter of Kelly, 238 id. 71; Kennedy v. Mulligan, 173 App. Div. 859.) The conclusion reached in regard to this subject in the opinion in Kissinger v. Quirin (206 App. Div. 126) was not concurred in by a majority of the court. We deem the cases cited above controlling. Error also occurred in the reception of testimony from the witness Castagnetto that the deceased had asked the witness to work in his household. This transaction between defendant’s testator and a third person was clearly irrelevant and inadmissible. (Green v. Disbrow, 56 N. Y. 334; McLoghlin v. N. M. V. Bank, 139 id. 514.) The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event. All concur. Present — ITubbs, P. J., Sears, Crouci-i, Taylor and Sawyer, JJ. Judgment reversed on the law and a new trial granted, with costs to appellant to abide the event.