Clarke v. Smith , 46 Barb. 30 ( 1866 )

By the Court, Ingraham, J.

■ The referee erred in admitting the plaintiff as a witness to testify to what passed between him and the deceased, or to testify that certain conversations did not pass between the plaintiff and the deceased. The Code, section 399, prohibits the examination of a party in respect to any transaction or communication had by the party personally with a deceased person. The plaintiff was called to testify as to what took place between him and the deceased in regard to what she had said as to his claims against her, and as to her having his bill and pay-. ing him money. It matters not whether the object of the testimony was to prove the affirmative or negative. It was to prove something between the plaintiff and the deceased, about which she could have testified if alive, and the injustice of allowing a party to testify under such circumstances is apparent. It seems hard, at first, that the plaintiff is not allowed to contradict the statements of the witnesses, who testified to what the deceased said on the subject; but there is in truth no hardship, because the law was not altered in this respect. Before the Code, the plaintiff could not have been a witness at all, and so far as relates to transactions between the plaintiff and deceased, the law; remains unaltered. The evidence as to what the deceased said when the plaintiff was not present ought not to have been received. Her declarations were not evidence, but as that was on behalf of the defendant, he has no right to complain of it.

[New York General Term, April 2, 1866.

The books were properly received. After a physcian has proved an employment professionally, the entries in his book of the visits have always been received to show the number of visits. It is evidence of nothing else, and for this purpose it has not been considered necessary, as in other cases where books are admitted in evidence, to prove that he keeps correct books, or that others have "settled by them.

The objection that the alteration of" the law" admitting parties as witnesses, has rendered the books unnecessary as evidence, even if it had that effect in other cases, does not apply where the other party is dead, because in such case he can not testify.

For the reason first . stated, I think the report must be set aside, and a new trial ordered; costs to abide the event.

The testimony heretofore taken can stand, with the exception of the testimony above referred to, and with leave to either party to move to strike out any part of it, and to either party to produce further witnesses. ;

t

I

Geo. G.Harmrd, Ingraham and’

Sutherland, Justices.]