Griswold v. Hart

• Decision Date: 07 May 1912
• Citation: 98 N.E. 918,205 N.Y. 384
• Parties: GRISWOLD et al. v. HART.
• Court: New York Court of Appeals Court of Appeals

205 N.Y. 384

98 N.E. 918

GRISWOLD et al.

v.HART.

Court of Appeals of New York.

May 7, 1912.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Eliza E. Griswold and another, administratrix and administrator of Oscar F. Ridgeway, deceased, against Louisa B. Hart, administratrix of Fred C. Hart, deceased. From a judgment of the Appellate Division (142 App. Div. 106,126 N. Y. Supp. 1011) reversing a judgment for defendant, the latter appeals. Affirmed.

E. W. Personius, of Elmira, for appellant.

E. J. Baldwin, of Elmira, for respondents.

CULLEN, C. J.

The action was brought to recover two certificates of deposit, one for $1,000 and the other for $500, and a deposit book in the Mechanics' Society, a savings bank, all of which instruments were in the name of the plaintiff's intestate, but in the possession of the defendant's intestate, who was alive and testified on the trial in his own behalf, but died pending this appeal. There was no indorsement or written assignment of these securities. The defendant's intestate had married a daughter of the plaintiff's intestate. She died, intestate, without issue, before the death of her father. After the death of the father, his representatives brought this action to recover possession of the instruments mentioned. The defendant claimed to own them by virtue of a gift made by the plaintiff's intestate to his daughter, to whose title the witness had succeeded by virtue of his marital rights, and on the trial was permitted to testify to a transaction or conversation between his wife and her father, at which the father gave the daughter the instruments in suit and the credits which they represented. Hart testified that in this transaction and conversation he took no part, but accidentally witnessed it as he passed through the room in which his wife and her father were. This evidence was admitted over the objection of the plaintiffs, who contended that the witness was incompetent under section 829 of the Code of Civil Procedure . The Appellate Division, by a divided court, held the admission of this testimony erroneous, and for the error reversed the judgment and granted a new trial.

This section, or its predecessor, section 399 of the Code of Procedure, has been in force for over half a century, and its interpretation the subject of numerous decisions in this and the other courts of the state. It might, therefore, be expected that the proper construction of the statutory provision had been authoritatively determined. Unfortunately the reverse is the case. The decisions are in irreconcilable conflict. The material part of the sectionof the present Code provision is as follows: ‘Upon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title, by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through or under a deceased person or lunatic, by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person or lunatic. * * *’

In Simmons v. Sisson, 26 N. Y. 264, it was held that section 399 of the old Code did not prohibit a party sued by the personal representatives of deceased from testifying to a conversation overheard by him between the deceased and a third person. To the same effect is Lobdell v. Lobdell, 36 N. Y . 327. So, also, is the opinion in Cary v. White, 59 N. Y. 336; but it is to be remarked that the opinion received the concurrence of but one other member of the court, and that there were other grounds on which the decision might have proceeded. Hildebrant v. Crawford, 65 N. Y. 107, follows the opinion in Cary v. White, supra. In Badger v. Badger, 88 N. Y. 546, 42 Am. Rep. 263, it was held that a conversation between the deceased and a third party, to which the witness was merely a listener, was not a personal transaction or conversation between her and the deceased, and that as to it she was a competent witness. Thus far the current of authority had been uniform, and, had it continued so, there would be no difficulty in the disposition of this case. But at this point a marked change seems to have occurred in the views of this court.

In Holcomb v. Holcomb, 95 N. Y. 316, 326, 327, the action was to set aside an assignment of a bond and mortgage, alleged to have been secured by the defendantfrom the plaintiff's intestate through undue influence, and because at the time the deceased was of unsound mind. On the trial, one of the next of kin of deceased, and therefore interested in the success of the suit, was allowed to testify, against the objection that the witness was incompetent under section 829 of the Code, to certain communications with the deceased, and also to occurrences transpiring in his presence. The admission of this evidence was held error, and the judgment below reversed. In the opinion of Judge Danforth, it is said: ‘The policy of the statute excludes the evidence of an interested witness concerning (1) any transaction between himself and a deceased person, or in which the witness in any manner participated; (2) all communications between the person deceased and the witness, including communications in the presence or hearing of the witness, if he in any way was a party thereto, or communications to either one of two or more persons, if all were interested.’ If this statement had covered the questions decided by the case, the departure from the previous decisions would be somewhat limited. But then the learned judge goes on to discuss the particular evidence admitted in the case, and holds that the testimony of the witness as to the deceased having spasms or fits was a violation of the statutory inhibition. He further held that the witness was not competent to testify as to what he heard his deceased father say. The learned judge said: ‘His testimony is not made admissible, because his father did not solicit the interview, and was even ignorant of his presence. The words, when spoken, became a communication which he received . It was then a communication to him.’ It is very clear that the Holcomb Case overrules the doctrine of the earlier cases, that an interested witness may testify to a conversation or occurrence in which he took no part.

In Simmons v. Havens, 101 N. Y. 427, 5 N. E. 73, Cary v. White, supra, is followed; but no reference is made to the much more recent case of Holcomb v. Holcomb, supra. Matter of Eysaman, 113 N. Y. 62, 73,20 N. E. 613,3 L. R. A. 599, was a proceeding for the probate of a will. Evidence similar to that admitted in the Holcomb Case was held to have been erroneously received, and the doctrine of that case, that the testimony of interested witnesses, ‘as to conduct and actions of the deceased, tending to show his enfeebled and dependent condition, and as to statements made by him, although not addressed to the witness, and made in ignorance of his presence,’ was improper, was reaffirmed.

The next case is that of Matter of Will of Dunham, 121 N. Y. 575, 577,24 N. E. 932. The proceeding was for the probate of a codicil to a will, contested on the ground of undue influence, restraint, and mental incapacity. The question was as to the competency of the witness, who was residuary legatee under the will, and interested in the defeat of the codicil, to testify to communications with the deceased, or made in his presence. The testimony was held incompetent, Judge Gray writing: ‘Therefore, while, as to any communications or transactions with the witness, the proposed evidence was plainly enough inhibited by section 829 of the Code, his testimony as to the conversations, or transactions, while he was present in the room, had between the deceased and other persons, was, under the circumstances, inadmissible.’

In Devlin v. Greenwich Savings Bank, 125 N. Y. 756, 758,26 N. E. 744, 745, it was said: ‘It is doubtful if the witness [the plaintiff in the action] could be permitted to testify as to a conversation in her presence between her uncle and Father Carew, relative to the gift she claimed. The cases of Eysaman's Will, 113 N. Y. 62 [20 N. E. 613,3 L. R. A. 599], and Dunham's Will, 121 N. Y. 575 , have very greatly limited the old rule in regard to such conversations.’ The decision proceeded on another ground; so it must be admitted that the excerpt quoted was obiter.

Petrie v. Petrie, 126 N. Y. 683, 27 N. E. 958, was an action in partition, and the appeal involved the competency of the plaintiff to testify to a conversation she overheard between her father and a third person. It was held that the objectionable testimony was wholly immaterial on the point upon which the case was decided, and therefore should be disregarded. But the court said: ‘The ruling of the trial court upon the objection to the above question would present a somewhat important point under the construction which this court has given to section 829 in recent cases, if it could be held that the answers in any degree affected the result. Holcomb v. Holcomb, 95 N. Y. 326;Matter of Eysaman, 113 N. Y. 72;Matter of Dunham, 121 N. Y. 575 .’

The next case in this court was that of O'Brien v. Weiler, 140 N. Y. 281, 35 N. E. 587, in which there was a return to the old doctrine. The action was to recover the amount of a savings bank deposit standing in the name of the plaintiff's testator as guardian for his daughter. The widow of the deceased, though interested in the action, was held a competent witness to a transaction between the deceased and another, in her presence, in which she took no part. The court cited Cary v. White, supra, and Simmons v. Havens, su...