O'Connor v. Ogdensburg Bank

Appellate Division of the Supreme Court of New York

O'Connor v. Ogdensburg Bank

51 A.D. 70, 64 N.Y.S. 501

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 15, 1900

StatusPublished

Cited by3 cases

This text of 51 A.D. 70 (O'Connor v. Ogdensburg Bank) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

O'Connor v. Ogdensburg Bank, 51 A.D. 70, 64 N.Y.S. 501 (N.Y. Ct. App. 1900).

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Opinion

Herrick, J.:

The defendant Cardinal’s claim to the money in question rests upon -an alleged transaction between herself and the deceased, O’Comior; that transaction consisted in the giving of a bank book kept in a tin box.. In testifying that she had seen the bank book exhibited to her in such tin box, and that it was the only one in the box, she indirectly testified that that was the bank book given to her by the deceased. She could not- testify to that directly, and cannot be permitted’ to do so indirectly. (Grey v. Grey, 47 N. Y. 552.)

[74]*74It was in .effect testimony concerning the alleged transaction between herself and the .deceased, and consequently obnoxious to section 829 of the Code of Civil Procedure, (Gregory v. Fichtner, 38 N. Y. St. Repr. 192; Viall v. Leavens, 39 Hun, 291.)

The evidence is material, the error in receiving it cannot be disregarded, and the judgment.must be reversed.

All concurred, except Smith, J., dissenting.

Judgment reversed, refereé discharged, and a new trial granted, costs to abide the event. ■'

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Herrick, J.:

The defendant Cardinal’s claim to the money in question rests upon -an alleged transaction between herself and the deceased, O’Comior; that transaction consisted in the giving of a bank book kept in a tin box.. In testifying that she had seen the bank book exhibited to her in such tin box, and that it was the only one in the box, she indirectly testified that that was the bank book given to her by the deceased. She could not- testify to that directly, and cannot be permitted’ to do so indirectly. (Grey v. Grey, 47 N. Y. 552.)

[74]*74It was in .effect testimony concerning the alleged transaction between herself and the .deceased, and consequently obnoxious to section 829 of the Code of Civil Procedure, (Gregory v. Fichtner, 38 N. Y. St. Repr. 192; Viall v. Leavens, 39 Hun, 291.)

The evidence is material, the error in receiving it cannot be disregarded, and the judgment.must be reversed.

All concurred, except Smith, J., dissenting.

Judgment reversed, refereé discharged, and a new trial granted, costs to abide the event. ■'

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51 A.D. 70, 64 N.Y.S. 501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oconnor-v-ogdensburg-bank-nyappdiv-1900.

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