Walize v. Morton , 219 A.D. 632 ( 1927 )

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.