Podmore v. Seamen's Bank

35 Misc. 379, 71 N.Y.S. 1026

• Court: City of New York Municipal Court
• Decided: June 15, 1901
• Status: Published

Opinion

Hascall, J.

We think that the court at Trial Term erred in striking out the testimony of Bridget Reilly, and in not submitting to the jury the question as to whether there had been a gift to her of the money deposited and the account, kept with the defendant bank, already paid over and closed — it was the direct-issue involved under the defendant’s pleading.

Mrs. Reilly is not an interested party, to be precluded from testifying, under section 829 of the Code of Civil Procedure, is not a party at all, nor “ a person from, through or under whom such a party * * * derives his interest.” The bank, it appears, in no way succeeded to her title, and she is not “ interested in the event,” within the meaning of the statute, and could not be bound by the judgment, whichever way it should go; for these reasons her testimony was competent, 62 N. Y. 80; 104 id. 507; 113 id. 242.

Judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event. ■

O’Dwyer, J., concurs.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.