I concur in the opinion of Judge VANN that Eva Rosseau, the mother of the plaintiff, was the party under whom the plaintiff claimed, and, therefore, under section 829 of the Code of Civil Procedure, not a competent witness to personal transactions between herself and the defendant's testator. I think, however, that no sound distinction can be drawn between this case and our decision in Bouton v. Welch (170 N.Y. 554). It is true that in that case the defendant released her dower by joining in the execution of the deed of her husband. But the trial court found that the agreement out of which the defense arose was made by the plaintiff's testator, not with her, but with her husband. No matter upon what ground, however, the case might have been decided, as a matter of fact it was actually decided on the proposition that where a third person sues on a contract made for her benefit she does not derive her interest from the party who furnishes the consideration for said contract. We are now about to hold the exactly contrary doctrine, and I think it but fair to the profession that under such circumstances we should expressly retract the Bouton case, not seek to distinguish it or leave it as a false light to deceive the unwary.
CULLEN, Ch. J. (in memorandum), O'BRIEN and HAIGHT, JJ., concur; GRAY, BARTLETT and MARTIN, JJ., dissent on opinion of PATTERSON, J., below.
Judgment reversed, etc.