Titus v. O'Connor

57 How. Pr. 391

• Court: New York Supreme Court
• Decided: May 15, 1879
• Status: Published

Opinion

Gilbert, J.

We think that the referee erred in excluding ■the testimony of the defendant as to the terms of the contract between him and the plaintiff’s deceased husband, Robert W. Titus. The plaintiff sues in her individual capacity and mot as executrix of her deceased husband. The contract which she seeks to have enforced was made with her after her husband’s death.

Both parties testified that the agreement between them was .that the defendant should work the farm on the same terms .as he had worked it under the agreement with the plaintiff’s husband. That was a virtual agreement. The Code of Civil Procedure has no application to such a case, for the reason that .the .action does not affect any title or interest which the plaintiff has derived from, through or under her deceased husband. Her title to, or interest in, the subject-matter in controversy is derived from the contract between her and the defendant. It has, in no sense, come to her by succession from her deceased husband. By his will the ownership of the property embraced in the contract was transferred to her, but the contract has no relation to such ownership, but is limited to the management of the property only. The reference in that contract to the previous one between the defendant and the deceased simply adopts the latter and makes it a part of the former. Evidence of the contract thus adopted is essential to show the contract actually made by the plaintiff, but it would neither prove nor disprove any claim which the plaintiff has derived from or through the deceased husband. Ho claim of that kind is involved in the action.

This error being decisive of the case, we need not discuss other exceptions raised upon the trial. The judgment must be reversed, the order vacated and a new trial granted with costs to abide the event.