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FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. complaint is of no importance. It may well be that he did not choose to answer the original complaint, but that he might desire to put in issue the facts which the plaintiff finds it necessary to allege by the amendment. The order, therefore, was erroneous in permitting the amendment of this complaint without giving the defendant an opportunity to answer.

For this reason the order should be reversed, with ten dollars. costs and disbursements, and the motion denied, with ten dollars costs, without prejudice to a motion on the part of the plaintiff, upon payment of above costs, to set aside the judgment and serve an amended complaint, if he shall be so advised.

VAN BRUNT, P. J., BARRETT, INGRAHAM and MCLAUGHLIN, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to a motion by plaintiff, on payment of such costs, to set aside judgment and serve an amended complaint.

CHARLES H. MOSES, Respondent, v. ALBERT H. HATCH and SUSAN A. R. MOSES, as Executors, etc., of WILLIAM MOSES, Deceased, Appellants.

Personal transactions with a decedent they cannot be proved inferentially by facts stated by a party incompetent, under section 829 of the Code of Civil Procedure, to testify directly in regard to such transactions.

In an action brought to recover a balance claimed to be due for services rendered by the plaintiff to the defendants' testator, for which it was alleged the testator had promised to pay at the rate of $3,000 a year "from month to month," the defendants by their answer admitted that "some work" had been done.

On the trial of the action the plaintiff was allowed to testify as to the nature of the testator's business and the duties which he (the plaintiff) performed, and to state, the books I kept were those that are required in an office, and also his transactions."

Held, that the admission of the answer did not relieve the plaintiff from the obligation of proving his employment by the deceased;

That although he attempted by his testimony to prove the independent facts of services rendered, yet, as from these independent facts the inference of employment to render such services might be drawn, such testimony was inadmissible under section 829 of the Code of Civil Procedure.

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

APPEAL by the defendants, Albert H. Hatch and another, as executors, etc., of William Moses, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of April, 1898, upon the verdict of a jury, as amended by an order entered in said clerk's office on the 9th day of May, 1898, and also from an order entered in said clerk's office on the 22d day of April, 1898, denying the defendants' motion for a new trial made upon the

minutes.

Artemus B. Smith, for the appellants.

William W. Niles, for the respondent.

PATTERSON, J.:

This action was brought to recover a balance of moneys claimed to be due for work, labor and services alleged to have been rendered by the plaintiff to the defendants' testator between the 1st of August, 1879, and the 20th of February, 1896. It is stated in the complaint that such services were of the value of $49,750, or at the rate of $3,000 a year, and that the testator had " promised to pay that sum to the plaintiff for the same from month to month;" that $22,076 was paid on account thereof, and that there still remains due a balance of $26,722, with interest. The defendants in their answer admit that during the period mentioned in the complaint the plaintiff performed "some work," labor and services for their testator, but they set up that they have no knowledge or information sufficient to form a belief as to the truth of the allegation of the complaint, that such work, labor and services were of the value mentioned in the complaint or of any value over the amount the plaintiff had been paid by their testator, as stated in the complaint. On the trial of the cause, the plaintiff had a verdict for $10,000, and from the judgment entered thereon and from an order denying a motion for a new trial, this appeal is taken.

It is quite apparent from the proofs that the finding of the jury must have been based upon the plaintiff's own testimony respecting the character and extent of the services he claimed to have performed for the defendants' testator. He was permitted, under objection, to testify to the general nature of the services for the

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. value of which he sued. As the issue was framed, it became necessary for him to show the full extent of those services. The admission of the answer, that some work was done, was not one either of the character or extent of such services, or of an employment to render all the service the plaintiff claimed to have performed. The plaintiff alleged an express promise to pay at the rate of $3,000 a year" from month to month," and before he could prove value it was necessary for him to show what work he had performed and all the service he rendered and for which he sought or claimed compensation. He testified that he was a bookkeeper, and, in a general way, an agent of the testator for a period of about eighteen years; that during that time the testator, who was his uncle, had various places of business in New York city and in Brooklyn; that he continued in the office of the testator in those places; and he was then asked what he did in those offices; that was objected to as being incompetent under section 829 of the Code of Civil Procedure. He was permitted to answer, the court suggesting that if what were shown by the answer amounted to a transaction with the deceased, the defendants might move to strike it out; whereupon the plaintiff testified that "William Moses' (the testator) business was speculating in provisions and stocks, and handling real estate of his own; he owned at one time, while I was with him, I should say, twenty houses, possibly more; he did business as executor for other people who owned real estate; he also built buildings during that period. From 1880 to 1890, I was keeping the books, keeping track of contracts, attending to reports of houses, renting houses, sometimes buying property, and sometimes selling property and working at contracts, deeds and leases. * * * The books I kept were those that are required in an office, and also his transactions." He was then asked: "Q. State what you were doing - don't use your uncle's name at all? A. The cash book, ledger, note books, check books and books of that character." This was also objected to. He then said, "I had very little to do with other people's books and accounts. I had some business. Q. With regard to other people than Mr. Moses?" That question was objected to as incompetent under section 829 of the Code of Civil Procedure, but the witness was permitted to answer. He then proceeded to give details of further services that he rendered, the length of time he was occupied during the office hours in the

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

testator's office, and after all this testimony was given, a motion was made by the defendants' counsel to strike it out, which motion was denied.

It is beyond controversy that all this testimony, emanating from the plaintiff himself, directly established the character and general nature of important services rendered by him to the defendants' testator. Doubtless the plaintiff was competent to testify to certain acts which would not directly prove or inferentially establish a personal transaction with the deceased, but as was said in Lerche v. Brasher (104 N. Y. 164), "if that employment or request in any manner or to any extent rested upon an inference drawn from the character of the facts* done, the evidence would be incompetent;" and it was held in Matter of Humfreville (6 App. Div. 535) that section 829 of the Code of Civil Procedure prohibits direct and indirect testimony relative to a personal transaction with a deceased person. The admission in the answer in this case did not relieve the plaintiff from the obligation of proving that all the services he rendered were pursuant to an employment. It is not to be construed as an admission dispensing with proof by the plaintiff of his employment. It is an admission that the plaintiff did some work for which he was fully paid. It is not an admission that he was employed to do work under a contract to pay at the rate of $3,000 a year. The fact of employment was in issue. The plaintiff sought to establish it by an inference to be drawn from the character of the work he did. It is true the evidence as to the work did not necessarily, and in respect of everything the plaintiff did, import a personal transaction with a deceased, in the sense of a direct communication between parties. As was said in Clift v. Moses (112 N. Y. 434)," the questions do not on their face call for a disclosure of a personal transaction of the witness" with a deceased, but (to quote further from the case last cited) "it has been held with general uniformity that the section (829) prohibits not only direct testimony of the survivor that a personal transaction did or did not take place, and what did or did not occur between the parties, but also every attempt by indirection to prove the same thing, as

* * by disconnecting a particular fact from its surroundings and perinitting the survivor to testify to what on its face may seem

* Sic.

*

38 144

38 640 38 144 147 470

147 621

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. an independent fact, when in truth it had its origin in or directly resulted from a personal transaction."

The plaintiff attempted by this testimony to prove the independent facts of services rendered, but from those independent facts the inference of employment to render all those services might be drawn, and that employment constitutes a personal transaction. We think that it comes within the prohibition of the statute. The right to recover is based upon an allegation of an express promise to pay at a certain rate "from month to month," and on the trial the plaintiff acknowledged that the burden was upon him to prove employment, and the case was tried upon that understanding.

Without considering other exceptions appearing in the case, we think, for the reason above stated, the judgment and order must be reversed and a new trial ordered, with costs to appellant to abide the event.

VAN BRUNT, P. J., RUMSEY and O'BRIEN, JJ., concurred; INGRAHAM, J., concurred in result.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.

GEORGE W. TAYLER, Respondent, v. THE AMERICAN RIBBON COM-
PANY, Appellant.

Discovery - action to recover commissions on sales—what facts do not establish a right to examine the defendant's books.

In an action for the breach of a contract for the payment of commissions upon sales of merchandise made by the defendant, an order directing the defendant to deposit with the county clerk, for six days, its sales books, cash books and all other books of account, showing the sales made by it during a certain period of time, to enable the plaintiff with his attorney to examine and take copies of the entries of such sales in said books, should not be granted where the moving affidavits show that the plaintiff already has all the information necessary to frame his complaint, and that the only pretext upon which further information could be required, is to enable him to state the amount of damages claimed.

APPEAL by the defendant, The American Ribbon Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New

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