Eisenlord v. Clum

• Decision Date: 02 June 1891
• Citation: 27 N.E. 1024,126 N.Y. 552
• Parties: EISENLORD v. CLUM et al.
• Court: New York Court of Appeals Court of Appeals

126 N.Y. 552

27 N.E. 1024

EISENLORD

v.CLUM et al.

Court of Appeals of New York.

June 2, 1891.

Appeal from supreme court, general term, third department.

A. J. Abbott, for appellant.

Geo. W. Smith, for respondents.

PECKHAM, J.

The plaintiff brings this action of ejectment as the son and sole heir at law of one Peter O. Eisenlord, who died in Montgomery county on the 30th day of June, 1885, seised in fee-simple and possessed of the premises described in the complaint. The defendants other than Clum are, respectively, the brothers, sisters, or nieces of the deceased, Eisenlord, and claim that they are his sole heirs at law, and the defendant Clum is in possession of the premises described in the complaint, and claims under the other defendants as tenant. The plaintiff is the son of one Margaret Lipe, and the question in issue depends upon whether she was married to the deceased, Eisenlord, prior to this son's birth. He endeavored to prove an actual marriage between the deceased and his mother prior to his birth, on the 21st of October, 1857, and for that purpose called, among others, his mother, then married to one Austin. The plaintiff offered to prove by her various conversations between the witness and the deceased upon the subject of their getting married, and also offered to prove by her the performance of the marriage ceremony between them, by a justice of the peace in Montgomery county, at a time anterior to the plaintiff's birth. All the evidence was objected to by defendants' counsel, and was excluded by the court, upon the ground that the witness was interested, and came within the provisions of section 829 of the Code; because, if she established the fact that she was married to the deceased, she would then be entitled to dower in this real estate. The witness was not a party to the action, and hence could not be excluded as having any interest on that ground. Nor was she a person from, through, or under whom the plaintiff derived any title or interest by assignment or otherwise. His title or interest, if any, came through Eisenlord, and that, of course, depended upon the question whether the plaintiff was his legitimate son. The only other ground of exclusion contemplated by the statute refers to a person ‘interested in the event’ of the action. Prior to the adoption of the Code, the law excluded interested witnesses from testifying. What amounted to such an interest as would exclude a witness was a question which was frequently presented, and in every conceivable phase, and the courts had finally settled down to a general rule on the subject, which had long prevailed before the legislature altered it. At common law, as the rule became developed by successive decisions, the interested witness was excluded only when he had what was termed a ‘legal interest’ in the event of the action. A direct and certain interest in the event of the cause, or an interest in the record, for the purpose of evidence, became necessary in order to exclude. Starkie, Ev. (9th Ed. 1849,) marg. pp. 23, 24. The inclination of the courts was that the fact of interest should go to the credit, rather than the competency, of the witness, and hence they said that the party alleging incompetency must show it beyond doubt. The English legislation interfered with the rule as to the record, and provided that it should not be evidence in another action for or against the witness who testified. 3 & 4 Wm IV. c. 42, § 26. Then, under the suggestion of Lord DENMAN, another act was passed limiting very greatly the cases in which a person should be excluded by reason of interest. 6 & 7 Vict. c. 85. In this state the question arose at an early date, and in one of the pioneer cases (Van Nuys v. Terhune, 3 Johns. Cas. 82) the rule, as above stated, was declared as the law. It was therein explained that a witness was not interested in the event of the cause unless he would gain or lose by the event, and he was not interested by the record, unless the verdict could be given in evidence for or against him in some other proceeding. In a note to this case it is stated that the rule was formerly that an interest in the question put to the witness excluded him, but it was admitted that such rule had been explained away and limited, so that the one announced in the case was the true rule. This case was decided in 1802. In Jackson v. Bard, 4 Johns. 230, it was held that the widow of one Dickenson, who was the mediate grantor under whom the defendant claimed the land in question, was a competent witness, although it was argued she might claim dower in case the deed had not been executed. The supreme court held the decision correct, and said she was not an interested witness, because the verdict in the cause could never be given in evidence in an action of dower brought by her. Then in Jackson v. Van Dusen, 5 Johns. 144, which was an action of ejectment, it was distinctly held that the widow of a person deceased was a competent witness in an action brought by the heir to recover the possession of lands claimed under her husband, though, she would be entitled to dower in such land. VAN NESS, J., delivered the opinion of the court, and said the witness had no other interest in the case than that which grew out of her right of dower in the premises, and as to that the verdict in the cause would be no evidence in a suit to be brought by her for the recovery of her dower. In Jackson v. Nelson, 6 Cow. 248, it was held that, in an action of ejectment against a devisee, a co-devisee and tenant in common with the defendant, not in actual possession, might be a witness for defendant, because the effect of a recovery by the plaintiff would not be to turn him out of any possession, nor could the verdict be evidence for or against him in any other suit. Again, in Jackson v. Brooks, 8 Wend. 426, 431, an action of ejectment, it was held that a tenant by the curtesy was a competent witness for the plaintiff, who was the heir at law. The court said the witness could not use the verdict, if the plaintiff recovered, as evidence in his favor in any suit he might bring to enforce his title as tenant by the curtesy, and hence he had but an interest in the question, and not in the event of the suit. See, also, Peake, Ev. (Norris' Notes,) p. 209, pt. 1, c. 3, § 1 Greenl. Ev. § 386 et seq. The interest must be certain, direct, not contingent or remote, or a mere possible benefit.

Under the rule of the common law on the subject of interest it is plain that the mother in this case would have been a competentwitness. She had no ‘interest in the event of the suit,’ as that expression had been defined by the courts, and the judgment would not have been any evidence for or against her in any action she might bring. I think the expression ‘interest in the event,’ as used in our statute, was never intended to enlarge the class to be excluded under it beyond what the common law excluded in using the same language. All legislation on the subject has been in favor of greater liberality in the rules relating to the competency of witnesses. Upon referring to the cases which have been decided under the section of the Code already referred to, we find that the rule defining what is an interest in the event is laid down in about the same terms as those used by the common law. Hobart v. Hobart, 62 N. Y. 80;Nearpass v. Gilman, 104 N. Y. 506, 10 N. E. Rep. 894; Wallace v. Straus, 113 N. Y. 238, 21 N. E. Rep. 66; Connelly v. O'Connor, 117 N. Y. 91, 22 N. E. Rep. 753. But the learned General term, upon the appeal in this case, has held that the exclusion was proper on the ground that the judgment would furnish the witness with important evidence to establish her claim to dower in the premises described in the complaint. The cases I have cited show conclusively that such a judgment would not have been admissible in evidence at common law in any such action, either for or against the witness, and in this respect the Code has not changed the rule. The case of Miller v. Montgomery, 78 N. Y. 282, is cited to show that the record would be legal evidence for or against her. A surety upon the bond of a non-resident executor was there held to be interested in the event of the accounting of his principal. This was so held because the surety is bound by the decree of the surrogate made upon a regular accounting, and such decree would be evidence against the surety in a suit upon the bond. Within all rules, such a witness is interested, and is incompetent to testify to a personal transaction with the deceased. The general term also thought the judgment would be evidence as a declaration or admission by the plaintiff of the facts, or some of them, which the witness would have to prove in her action against him for dower. Any declaration or admission made by the plaintiff as to any fact material for the witness to prove in her action is undoubtedly admissible as an admission. If found in a pleading, and it be shown that it was placed there with the knowledge and sanction of the plaintiff herein, such pleading would be admissible for the purpose of proving the admission. Cook v. Barr, 44 N. Y. 156. In order, however, to prove such admission, it is not necessary or proper to put in evidence the judgment in the action, for it is not the judgment which furnishes the proof, but the admission contained in the pleadings, and the judgment is not in that case the least evidence in favor of the witness in any action she might bring. The admission would exist without the judgment, and regardless of it.

That the witness has an interest in the question is very plain, but I am aware of no principle that would permit the introduction of this judgment as any proof for or against the witness in any other action. I see no foundation for any estoppel as against the plaintiff herein in an action brought by the witness to recover her dower. If, as I say, he has made admissions, they may be proved; but to say that...