Connolly v. O'Connor
| Decision Date | 22 October 1889 |
| Parties | CONNOLLY v. O'CONNOR. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, fifth department.
Action by Mary J. Connolly against John O'Connor upon an alleged contract for the support of a child, of which he was alleged to be the father. Pending the action, defendant died, and Mina E. O'Connor, his administratrix, was substituted in his place. The plaintiff is the sister of the child's mother, Lucy Mooney, whose testimony is the sole evidence of the contract. The mother was never married, and John O'Connor was adjudged to be the father of the child by an order of filiation, and was directed to pay to the overseer of the poor a certain sum weekly. Mr. O'Connor, having failed to obey the direction to pay $2.50 per week, met the mother, plaintiff, the overseer of the poor, and the mother's attorney, Mr. Cochrane, by appointment, at Mr. Cochrane's office, to make arrangements for the support of the child, or, as the mother says, ‘to see why Mr. O'Connor did not pay the money he was ordered to pay.’ Mr. Cochrane then said to Mr. O'Connor, ‘What are you going to do about this matter of support of the child?’ and explained the bond to Mr. O'Connor, and told him the child would have to be supported. Mr. O'Connor replied that he had paid the witness (the mother) $35, and he was not going to do anything more for Lucy, (meaning the mother.) She had done all she could against him; but that if the plaintiff would take the child, and support it as her own, he would pay her (the plaintiff) $2.50 per week, and ‘anything over, if she kept account of it, he would pay it;’ to which proposition plaintiff assented. Defendant contends that, though the witness disclaims taking any part in the conversation, it amounted to a personal transaction between her and John O'Connor, within the meaning of Code Civil Proc. N. Y. § 829, which provides that ‘upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or person interested in the event * * * shall not be examined as a witness in his own behalf or interest * * * against the executor, administrator, or survivor of a deceased person * * * concerning a personal transaction or communication between the witness and the deceased person,’ except where the executor, administrator, or survivor is examined in his own behalf, or the testimony of the deceased person is given in evidence concerning the same transaction or communication. Judgment for plaintiff, and defendant appeals.
Morgan & French, for appellant.
William D. Edmonds, for respondent.
The witness Lucy Mooney was not a party or privy to the action. She was therefore a competent witness to prove the alleged contract between the plaintiff and the defendant's intestate, unless she was interested in the event, even assuming that her testimony involved a personal transaction between herself and the intestate. Code, § 829. We thin...
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Rosseau v. Rouss
...the voice of the living party to a contract when the other party is dead and cannot speak. The respondent relies upon Connelly v. O'Connor, 117 N. Y. 91, 22 N. E. 753, and Bouton v. Welch, 170 N. Y. 554, 63 N. E. 539, but we do not regard either as controlling, because in both the promise w......
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...interested in the event.’ An interest sufficient to disqualify him must not be ‘uncertain, remote, or contingent.’ Connelly v. O'Connor, 117 N. Y. 91, 93,22 N. E. 753;Eisenlord v. Clum, 126 N. Y. 552, 27 N. E. 1024,12 L. R. A. 836. Gain or loss must result to him from the judgment in its di......