Richardson v. Warner

The witness offered is Ayer. The personal transaction is, between him and Alexander, deceased. And Ayer is examined against Richardson.

The first question then is, whether Richardson is the assignee of Alexander, deceased, under the meaning of this section. The defendants, to show that he is not, cite Bartlett v. Tarbox (1 Keyes, 495), and Porter v. Potter (18 N. Y., 52). But these decisions do not apply. The section of the Code, as it then stood, was quite different. In the latter of these cases Judge Denio remarked that the decision would not be a precedent, because the Code had been changed (see Code of 1851); Mattoon v. Young (45 N. Y., 696), held that the word assignee in this section included a grantee, and the court said that the intention was to exclude the testimony as to all persons who have succeeded to or acquired the right of the deceased. (See, also, Cary v. White, 59 N. Y., 336; Andrews *16v. National Bank of North America, 14 S. C., N. Y., 20.) And if we look at the reason of the rule it is plain that the section should apply to Richardson as to an assignee of Alexander. Ayer is about to testify to a personal transaction between him and Alexander, and Alexander is not living -to contradict him. Richardson took the note from Alexander., He is the assignee of Alexander, as was held by the referee.

The next question is, whether Ayer belongs to any one of the three classes of persons who are excluded. 'He is not a party. Is he a person from through or under whom a party to the action derives any interest or title ? The latter part of the section which we have been examining above enumerates the persons against whom certain witnesses may not testify. The first part, which we are now considering, defines who these witnesses are. They are, first, parties; second, persons interested; third, persons from, through or under whom parties or persons interested derive title or interest.

The note was made by Warner to the order of, and was indorsed by, Ayer. The signatures were proved to be genuine and the death of Alexander was proved. At this point Ayer was offered as a witness. Now the plaintiff derived his title to the note through and under Ayer. It was necessary to prove Ayer’s transfer of the note by indorsement in order to show the plaintiff’s title. And the plaintiff’s title had in fact been shown in that way.

True, the plaintiff’s title did not come directly from Ayer, but passed through Alexander. But the language of the section is broad — “from, through- or under,” “derives any interest” “by assignment or otherwise.” The plaintiff has a title to the note and thus a right of action against Warner. How does he derive it? From Ayer’s transfer to Alexander and Alexander to him.

It is argued by the defendants (and it was so held by the learned referee) that as the defendants called Ayer as a witness and as they did not derive their title from him, he was competent. There is force in this view. But it seems to us that we must follow the language of the section. In Mattoon v. Young (ut supra) it was held by the Court of Appeals that this section in some instances rendered witnesses incompetent who had been competent by the common law. In Alexander v. Dutcher (14 S. C. N. Y., 439), affirmed in the *17Court of Appeals) it was held, that this section, made a witness incompetent in a case where previously he had been competent by statute. So that the section had been held to have a restrictive and not always an enlarging, effect. And the language of the section is general. It does not say: “Any person from, through or under whom the party calling him derives any interest. (Le Clare v. Stewart, 15 S. C. N. Y., 127.) Since the trial of this action the legislature have changed the section so as to conform to the position of the defendants, by inserting, after the word “ witness,” the words “ in his own behalf or interest.” (Code of Civil Procedure, § 839.) This change of language indicates that the section, as it stood at the time of the trial, was not to be construed as if it contained those words. So far as this construction of the section should seem to apply to a party when called as a witness it is probably controlled by the previous section, 390. The evil which section 399 guards against can hardly exist when the party is called against himself by the other.

For these reasons we think Ayer was improperly admitted and there must be a new trial, costs to abide the event; reference discharged.

Judgment reversed and new trial granted; reference discharged, costs to abide event.