In re the Estate of Schaff

274 A.D. 1020, 85 N.Y.S.2d 147, 1948 N.Y. App. Div. LEXIS 4497

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1948
• Status: Published

Opinion

Appeal from a decree of the Surrogate’s Court of Tompkins County allowing the claim of respondent against the estate of Harold H. Schaff, deceased, in the sum of $495.85, plus interest and an attorney’s fee of $75. Decedent conducted a tutoring school known as the University Tutoring School in which respondent was employed as a tutor. The claim was for the sum of $495.85 as an alleged balance due for tutoring services. The chief proof offered to support the claim, and which was considered by the Acting Surrogate, was an account book. Respondent’s wife identified the book, which covered a considerable period of time, and testified that it was kept in the office of the decedent at the school. Most of the entries therein were made by respondent. Appellant objected to the admission of the book on the ground that it involved a personal transaction with the decedent, and also to the conclusion of respondent’s wife as to the amount due; but did not object to the competency of the witness otherwise under section 347 of the Civil Practice Act. The Acting Surrogate held that the book was not privileged and that respondent’s wife was not barred from identifying it. Appellant argues in this court that even if respondent’s wife was not precluded from testifying under section 347 that she was an interested witness and her uncorroborated testimony was insufficient to establish the claim. Decree unanimously affirmed, with costs. Present — Hill, P. J., Heffernan, Foster, Russell and Deyo, JJ.