Harris v. Abramsky

Judgment and order reversed on the law and the facts, and a new trial granted, with costs to abide the event, on the ground that it was error to permit the plaintiff, over objection, to testify that the decedent gave him the cheek “ on account of the commissions;” also, as to what the decedent said in answer to plaintiff’s request to let him have $25 “ on account,” and as to decedent’s acquiescence. We think the plaintiff was disqualified under section 347 of the Civil Practice Act* to testify to a personal transaction between himself and the deceased, and that his testimony was not justified by the receipt in evidence of the cheek. (Matter of Callister, 153 N. Y. 294.) Nay v. Curley (113 N. Y. 575) did not turn upon the statute, but upon the part conversation rule permitting the reception of the whole conversation. Kelly, P. J., Jaycox, Kelby, Young and Kapper, JJ., concur.