Laka v. Krystek

• Decision Date: 28 February 1933
• Citation: 261 N.Y. 126,184 N.E. 732
• Parties: LAKA v. KRYSTEK.
• Court: New York Court of Appeals Court of Appeals

261 N.Y. 126

184 N.E. 732

LAKA

v.KRYSTEK.

Court of Appeals of New York.

Feb. 28, 1933.

Action by Bronislawa Laka, as administratrix of the goods, chattels, and credits of Frek Laka, sometimes known as Franciszek Maj, deceased, against Jan Krystek. From a judgment of the Appellate Division (235 App. Div. 99, 256 N. Y. S. 262) reversing as a matter of law a judgment of the county court, which reversed a judgment of the city court in favor of the plaintiff, and affirming the judgment of the city court, the defendant appeals, by permission.

Judgment of the Appellate Division reversed, and judgment of the county court affirmed.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Sidney Otis and Thomas B. Lee, both of Niagara Falls, for appellant.

Angelo F. Scalzo, of Niagara Falls, and Thurman W. Stoner, of Buffalo, for respondent.

CRANE, Judge.

This action on a promissory note, brought in the city court of Niagara Falls, resulted in a judgment for the plaintiff in the sum of $500 which, on appeal, was reversed by the county court, and the complaint dismissed. On appeal to the Appellate Division, that court reversed the county court and reinstated the judgment for the plaintiff while we, in turn, reviewing this case by permission of the Appellate Division, are about to reverse and reinstate the judgment for the defendant. With these vicissitudes it is apparent that a question is involved of more or less difficulty, and about which there may be a substantial difference of opinion. Whether the wife may testify in favor of her husband about the payment of a note made by him, when she may be interested in the result, is the question which has puzzled the courts. A statement of facts is necessary to appreciate the perplexities.

Jan Krystek, on December 8, 1925, made his promissory note, payable on demand to the order of Frek Laka, for $500 at the Falls National Bank, Niagara Falls. The payee having died, his administratrix brought this action to recover the full amount thereof, with interest, as the instrument was found among his possessions at the time of his death. On the trial in the city court, Julia Krystek, the wife of the defendant, testified as to payment and related the circumstances, which the city judge subsequently considered disqualified her, and in consequence of which he struck her testimony out and gave judgment for the plaintiff. The substance of her testimony was that she and her husband owned some lots on which there was a balance due. They borrowed the $500 from Frek Laka to make this payment. The money was given into the hands of the wife, as she always handled the money, but Frek Laka looked to the husband as the debtor for payment. It was his debt, for the wife says that when the note for the money was signed Laka said, ‘It was sufficient to have the husband's signature without mine.’ Mrs. Krystek's testimony regarding payment impressed the trial court so favorably that the judge said in his opinion, had her evidence been competent, he would have given judgment for the defendant. Thus we see the importance of determining the competency of this witness.

The Civil Practive Act, section 347, says, that upon the trial of an action, a person interested in the event shall not be examined as a witness in his own behalf against the administrator of a deceased person. The true test of the interest of a witness is that he will either gain or lose by the direct legal operation and effect of the judgment, or, that the record will be legal evidence for or against him in some other action. It must be a present, certain, and vested interest, and not an interest uncertain, remote, or contingent. Hobart v. Hobart, 62 N. Y. 80, 84. In that case an action was brought by an heir at law of a deceased grantor to set aside deeds because of incompetency and for fraud and undue influence. Other heirs, not parties to the action, were called to testify as to the grantor's mental condition, and although they, too, had received deeds not the subject of the litigation, the court held that they were not disqualified. ‘The most that can be claimed is, that these persons were interested in the question involved, but such interest is not sufficient to disqualify.’ This rule was again applied in Nearpass v. Gilman, 104 N. Y. 506, 509,10 N. E. 894, 895, where notes had been made by the defendant through his general agent, Arthur Gilman. Objection was made that the agent could not prove payment, as he was interested in the event; his interest being that, if he failed to establish payment, he would be liable to his principal for misappropriation of funds or for negligence in permitting the creditor to retain the paid securities, and the court said: ‘Assuming that a possible liability of the witness upon one or the other of these grounds might exist, it is obvious that it would find its origin in facts gaining no effect or potency from the event of the action or the judgment for the plaintiffs in which it might terminate. That judgment could not bind him directly by its own force, nor indirectly as evidence against him. It might prove to be the occasion or cause of a suit against him by his principal, but in defending that suit he would be utterly unaffected by the judgment against his principal and entirely at liberty to show a payment in fact made by him with his principal's funds and explain the failure to take up the notes and checks. The judgment against his principal would not hamper or affect him in the least.’ The witness was held to be qualified, although he was deeply interested in the result, as, if payment of the notes had been established by his testimony, that would end the matter and he could not be sued by his principal for misappropriation or neglect.

Eisenlord v. Clum, 126 N. Y. 552, 558,27 N. E. 1024, 1025,12 L. R. A. 836, followed, wherein it was held that a mother was not disqualified from testifying as to the legitimacy of her offspring on...