Lockwood v. Lockwood

201 A.D. 657, 195 N.Y.S. 652, 1922 N.Y. App. Div. LEXIS 6384

Opinions

The following is the opinion of the court below:

Young, J.:

This action is for dower. The plaintiff alleged that she was the common-law wife of William B. E. Lockwood. The trial resulted in a verdict in favor of the defendants, and the plaintiff now moves for a new trial.

A single question of law is presented arising out of the exclusion of certain testimony offered by plaintiff. The executor, Manice DeF. Lockwood, was called as a witness in his own behalf and testified in substance that the decedent had spoken to him on a number of occasions, referring to the plaintiff as his housekeeper and secretary; that he had asked decedent who plaintiff was and what position she occupied in his house, and decedent told him that she was his housekeeper and did his writing for him, and that he had never heard decedent say in any way directly or indirectly that he was engaged to be married or that he had married plaintiff.

On rebuttal the plaintiff was called and her counsel offered to prove the. marriage ceremony or agreement entered into between her and the decedent on or about July 16, 1915, at Beechmont, New Rochelle, and also offered to prove by her the fact that they were living together as man and wife up to and including the time of his death, upon the ground that the attorneys for the executor had by their testimony opened the door and waived the provisions of section 829 of the Code.

* This offer was objected to by defendant’s counsel under section 829 of the Code and the objection was sustained and an exception taken by the plaintiff.

Plaintiff’s counsel bases this motion upon a recent decision of the Appellate Division in this department (Farmers’ Loan & Trust Co. v. Wagstaff, 194 App. Div. 757). That was an action for an accounting by a trustee under a deed of trust and the real issue was whether or not one of the defendants was the widow of the decedent. The court held, among other things, that the affidavit of the decedent to his income tax return did not constitute testimony within the meaning of the second exception to said section 829, viz., “ The testimony of the * * * deceased person is given in evidence,” and thereby make the said defendant a competent witness.

None of the questions decided in that case are the same as here presented and in my opinion the exclusion of the testimony of the plaintiff complained of was not in violation of the rule laid down by Mr. Justice Mills in Farmers’ Loan & Trust Co. v. Wagstaff. The testimony given by the executor was as to declarations made to him by his brother, and the reception of these declarations in evidence permitted the plaintiff merely to give testimony if she could to anything which occurred in any of these occasions as to' which the executor had testified. If these statements had been made by the deceased by way of testimony given in a judicial proceeding and such testimony had been offered in evidence by the executor then it may be that the door would have been opened for the plaintiff to give testimony as to her relations with the deceased. It seems to me that this distinction is clearly made in the opinion above referred to.

The motion for a new trial is, therefore, denied.

Now Civ. Prac. Act, § 347.— [Rep.