Schaaf v. Thomas

241 A.D. 617, 268 N.Y.S. 738

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1934
• Status: Published

Opinion

Judgment affirmed, with costs. It was for the jury to determine what parts of the testimony of a given witness they would credit; to draw the inferences and determine what the parties intended by the language used which imperfectly or otherwise embodied the agreement. The jury were free to interpret the evidence to mean that the husband was not a party to the contract made by the wife for her own benefit and that the husband had no objection to the wife so contracting for her own separate account and estate. The record so viewed made competent the testimony of the husband, who makes no claim that he is a party of the contract. (Stevens v. Cunningham, 181 N. Y. 454; Perry v. Blumenthal, 119 App. Div. 663; Lashaw v. Croissant, 88 Hun, 206; Root v. Strang, 77 id. 14; Sheldon v. Button, 5 id. 110; Burley v. Barnhard, 9 N. Y. St. Repr. 587; Adams v. Honness, 62 Barb. 326.) Young, Kapper, Carswell and Davis, JJ., concur; Lazansky, P. J., dissents on the following ground: The husband was a party to the arrangement. Either his promise was a part of the consideration for decedent’s promise to plaintiff, or his participation in furnishing decedent with support was a part of the performance of that for which decedent gave her promise to plaintiff. The husband was incompetent to testify under section 347 of the Civil Practice Act. (Rosseau v. Rouss, 180 N. Y. 116.)