Eisenlord v. Eisenlord

2 N.Y.S. 123, 56 N.Y. Sup. Ct. 340, 17 N.Y. St. Rep. 449, 49 Hun 340, 1888 N.Y. Misc. LEXIS 62

• Court: New York Supreme Court
• Decided: July 2, 1888
• Status: Published

Opinion

Landon, J.

We think it was error for the court to allow the plaintiff to examine Margaret Austin, his mother, as a witness in his behalf, on the trial, touching the alleged marriage of herself with Dr. Eisenlord, and what took place between them immediately preceding and following the alleged marriage. Section 829 of the Code of Procedure declares that, “ upon the trial of an action, * * * a person interested in the event * * * shall not be examined as a witness, in his own behalf or interest, * * * against a person deriving his title or interest from, through, or under a deceased person, * * * concerning a personal transaction or communication between the witness and the deceased person.”

1. Margaret Austin was interested in the event of this action. The rule laid down by the elementary writers, (1 Greenl. Ev. § 390,) and approved in Hobart v. Hobart, 62 N. Y. 82, is; “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.” Miller v. Montgomery, 78 N. Y. 285. The judgment in favor of the plaintiff would furnish her with important evidence to establish her claim to dower in the premises described in the complaint. Upon this plaintiff’s recovery, suppose Margaret brings her action against him to recover her dower. This judgment roll would show against the plaintiff, claiming under it and accepting its terms, that Dr. Eisenlord died seized of the premises, leaving, as the complaint alleges, this plaintiff his “lawful descendant, son, and sole heir at law of the said Peter O. Eisenlord, deceased, and as such heir at law entitled in fee to the immediate possession thereof. ” Evidence aliunde would be competent to show that upon this trial, and essential to his recovery, he alleged and established the facts that Margaret Austin was his mother; that, prior to his birth, she and Dr. Eisenlord were lawfully married. It is not essential that she should be a party to the present action. It is nevertheless evidence in her behalf, against him, that he, in order to obtain title to the land, solemnly declared, and procured the truth of the declaration to be judicially established, that all the conditions upon which Margaret’s right to dower depend were absolutely true in fact. It is not received as a judgment, but as his declaration. 1 Greenl. Ev. § 527a; .Cook v. Barr, 44 N. Y. 156. It is impossible to see how this plaintiff, either in law or fact, could gainsay the truth of his solemn declaration.

2. Margaret Austin, being thus interested in the event, was examined touching the very matter upon which her interest depended. Her testimony, which tended to establish the plaintiff’s title to the land, tended just as completely to establish her own.

3. She testified against the defendants, whose title, whatever it was, was derived through Dr. Eisenlord, and not otherwise.

4. Her testimony was concerning the personal transactions and communications between Dr. Eisenlord and herself. The authorities are to the same "effect. Sanford v. Ellithorp, 95 N. Y. 48; Steele v. Ward, 30 Hun, 555; Miller v. Montgomery, supra. For this error the judgment should be reversed, and a new trial granted, costs to abide the event. We think, also, the order for a new trial should have been granted upon the facts. We concur in the view taken by Mr. Justice Bish in the ease next reported. (Eisenlord v. Clum, infra.)