Jones v. Thomas

concurs with McLENNAN, P. J., in so far as he holds that the admission of the testimony of the witnesses Bullock and Perkins referred to was error; but, there being ample evidence outside of the testimony of such witnesses to sustain the findings of the referee, this court, on appeal, should, under section 993 of the Code of Civil Procedure, disregard such error and affirm the judgment.

dissents upon the ground that the referee committed error prejudicial to the plaintiff in permitting the defendants Bullock and Perkins to testify to conversations and personal transactions had with Lydia J. Howell, deceased, of whose estate plaintiff is executrix, under section 829 of the Code of Civil Procedure, because each of said witnesses was interested in the event of the action.

Judgment affirmed, with costs, upon authority of same case reported 76 App. Div. 596, 79 N. Y. Supp. 111, and upon the opinion of the referee herein.