This action was brought to recover of the defendant the sum of $1,429.10, with interest, for money alleged to have been received by him for or from the plaintiff's testatrix in her lifetime, and which at her death was due from him to her. The defendant by his answer put in issue the alleged *Page 342 indebtedness, and the action was referred to a referee, who found in favor of the plaintiff. The evidence to establish the defendant's liability appears in the record to have been very uncertain and unsatisfactory, and we are not convinced that the referee reached the right conclusion upon the merits. Taking the most favorable view of the evidence for the plaintiff, the case was a very close one, and, therefore, any improper evidence received for the plaintiff may have materially influenced the decision and prejudiced the defendant.
The testatrix gave by her will in legacies to various legatees the sum of $2,750. Upon the trial the plaintiff, as a witness, was asked these questions, which were objected to and answered as follows: "Q. Were all the claims that were presented to you as administrator paid? A. All the claims that have been presented have been paid. Q. Has the time for the presenting of these claims against the estate past? A. It has. Q. Independent of the claims in suit, what was the amount of the estate of Elizabeth K. Petrie, deceased, after the payment of her debts? A. About $1,800." This evidence was incompetent for any legitimate purpose. As the testatrix had given in legacies $2,750, and her estate, after the payment of debts, amounted to only $1,800, the counsel for the defendant claims that this evidence was givon to show that in the mind of the testatrix she had an estate sufficiently large to pay all her legacies, and, therefore, that the claim in suit really belonged and was owing to her estate. Unless the evidence was introduced for some such purpose, it is not perceived for what purpose it was intended. In weighing the doubtful and uncertain evidence in the case, the referee may have given the argument, which could be drawn from the actual amount of the estate as compared with the amount of the legacies given by her, some influence. We think this evidence was entitled to no weight and was wholly immaterial and improper, and we are unable to say in such a case as this that it did not prejudice the defendant. If the plaintiff's case had been reasonably clear of doubt or fairly sustained by satisfactory evidence, it would have been possible to hold that *Page 343 this evidence was not damaging to the defendant. But upon the case as presented to us we ought not to disregard it as harmless.
We have purposely omitted to comment particularly upon the evidence bearing upon the defendant's liability, so that upon the new trial neither party may be prejudiced by our views thereof.
For the error mentioned the judgment of the General Term and that entered upon the report of the referee should be reversed, and the order of reference vacated and a new trial ordered, costs to abide event.
All concur.
Ordered accordingly.