[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 449 On the trial of this action John Streib, a witness on the part of the plaintiff, and formerly the managing clerk of plaintiff's intestate, testified to certain conversations between plaintiff's intestate and the defendant Orth, material to the issues in this case, at which conversations Streib stated that he was present, and that the conversations took place at the office of deceased. The defendant Orth was called as a witness in his own behalf, and the referee very properly refused to allow him to testify as to what was said, or what was not said, between him and the deceased at those interviews. Mr. Orth was then asked whether he ever had any conversation with deceased at his office at which Streib was present, and at which Orth made certain statements to deceased, which Streib had testified to.
These questions were excluded and we think properly, because they related to what was said between Orth and the deceased, and not merely to the fact of Streib's presence at an interview between them. But the counsel for defendants then asked Orth whether or not he had a conversation with deceased, at his office, at which Streib was present; also whether Streib was ever present with Orth in the office of the deceased, when the deceased *Page 450 was looking up authorities in the case of Friend v. Orth (a fact to which Streib had testified, and which was relevant).
These questions were excluded, and exceptions taken. Peter Cook, another witness for the plaintiff, and his attorney in this action, gave important testimony as to the services of deceased and their value, and testified to twenty interviews and conversations between Orth and deceased at which he said he was present and which related to the sale of a distillery, for the services of deceased, in which matter the plaintiff has been allowed by the referee $2,500. Mr. Cook testified that deceased had a dark room, and that there was also a large room; that up to the fifteenth or sixteenth of their conversations they all took place in the large room, and witness was present at every one of them; that the sixteenth was had in the large room and the eighteenth in the same room. Where the others were had did not clearly appear, but the witness testified that Orth and deceased did not sit in the dark room.
When Mr. Orth was on the stand, he was asked whether Mr. Cook was ever present with him and deceased at any conversation in regard to the distillery. This question was excluded, but was afterward answered. He was afterward asked whether he had daily meetings with deceased, at which Cook was present (Mr. Cook having testified to such meetings), and this was excluded. He was asked in which room at the office of deceased, he had conversations with him; this was excluded, and the question whether deceased saw him in the dark room was also excluded.
We think the referee went too far in excluding the inquiries above referred to. Section 829 of the Code prohibits the examination of a party as a witness in his own behalf against the executor, etc., of a deceased person "concerning a personal transaction or communication between the witness and the deceased person." It is contended that the purpose of this prohibition is, in all cases where a personal transaction between a surviving party and the representatives of a deceased party comes in question, to confine the survivor to such evidence concerning the transaction as was admissible at common law; *Page 451 and that, consequently, if a competent witness testifies to such a transaction, the survivor is not only prohibited from contradicting him directly, but is also precluded from contradicting him indirectly, by testifying to facts which tend to show that his testimony is not true; for it is claimed that any testimony which bears upon the question whether or not the transaction testified to took place is testimony concerning the transaction, and the surviving party is not a competent witness on that subject, but must rely wholly on common-law evidence.
We cannot assent to this construction of the section. By other provisions of the Code, parties to actions are declared to be competent witnesses in their own behalf, and the special prohibition contained in section 829 is an exception to the general rule. The primary intent of this prohibition is very apparent, and is to prevent a surviving party from proving, by his own testimony, a personal transaction or communication between himself and a deceased person, which, but for the prohibition, he might do without fear or possibility of contradiction. The language of the prohibition is sufficiently broad to prohibit the survivor from testifying that any particular communication or transaction did or did not take place personally between himself and the deceased, but there we think the prohibition ends, and that it does not preclude the survivor from testifying to extraneous facts or circumstances, which tend to show that a witness who has testified affirmatively to such a transaction or communication has testified falsely, or that it is impossible that his statement can be true, as, for instance, that the survivor was at the time absent from the country where the transaction is stated to have occurred, and that, so long as the survivor refrains from testifying as to any thing that passed, or did not pass, personally between himself and the deceased, it is not a valid objection to his testimony that the facts which he states bear upon the issue, whether or not the personal transaction in question took place, or upon the truth of the testimony by which such transaction is sought to be proved against him.
We think that Mr. Orth for instance was competent to testify *Page 452 that he was not in the city of New York at the time referred to by the witness, or that the witness was at some other place, or that he never met the witness at the office where the conversations are alleged to have occurred, and on the same principle, we see no reason why he should not have been allowed to testify that the witness was never present at that office when any conversation took place between Mr. Orth and the deceased, so long as he refrained from testifying as to any thing that was or was not said between him and the deceased.
The fact that the interviews between the party and the deceased did not occur at the place named by the witness, but in a different room, we think was an independent fact, inquiry as to which did not trench upon the rule. It was not testimony as to the transaction itself, but as to the fact, whether the witness saw the party and the deceased together at the place named by the witness. A party surely ought to be allowed to testify that he never was in a particular house, or room, or never met the witness or the deceased there, for the purpose of contradicting the witness who testifies to a transaction between them at that place.
The plaintiff's counsel contends that, although the referee may have erred in excluding some of the questions put to the witness Orth in relation to the case of Friend v. Orth, the error is immaterial, because the referee, by reason of proof on the part of the defendants, disallowed the claim for services of the deceased in that suit. This is not, we think, a sufficient answer. Streib testified as to other claims which were allowed by the referee, and the allowance of these claims depended largely upon the credit to be given to his testimony. His testimony in relation to the Friend suit was material to the issue, and the defendants were entitled to the benefit of any contradiction in respect to this, which would have tended to impeach his credit or accuracy.
Certain questions were asked of Orth touching what the deceased did in the case of Greener v. Orth, whether he put in an appearance, drew an answer, etc., as testified to by Streib. The exclusion of these questions was held by the court at General *Page 453 Term to be erroneous, as they did not relate to personal transactions with the deceased; but the court attempted to cure the error by requiring the plaintiff, as a condition upon which the judgment should be affirmed, to stipulate, to deduct, from the recovery, the amount allowed for services in that suit. We cannot sustain this course as a precedent. It deprives the defendants of any advantage they might have from a material contradiction of the plaintiff's witness. Such a course would be proper only in case the evidence of the witness related solely to the item rejected, and his whole testimony could be stricken out without affecting the residue of the recovery.
It is possible that the evidence excluded may not in this case have materially affected the result, but to cure the errors on that ground, it must appear as matter of law that the result could not have been thus affected. The questions involved are constantly arising on the trial of causes, and to sustain the rulings in this case would afford a precedent which might be attended with very serious consequences.
The judgment should be reversed, and a new trial ordered, costs to abide the event.
All concur, except EARL and DANFORTH, JJ., who dissent as to admissibility of Orth's testimony regarding a conversation he had with deceased in presence of Streib.
Judgment reversed.