To support the allegations of the complaint the plaintiffs called Rachel A. Jones, one of the plaintiffs, the administratrix, as a witness, and she testified: “Samuel Jones, deceased, and myself went down to Mr. and Mrs. Perkins, the defendants, about July, 1892. On that occasion he and I sat and counted the money in one hundred dollar packages. I would lay it on his knee as fast as .it was counted. There was counted out $650.00 ; I counted it. That was at our home. On the next day Mr. Jones and I went down to the defendants’ house at Dale. Mr. and Mrs. Perkins, the defendants, and myself and husband were there. There was no one else there. Mr. Perkins counted over this money there. Mr. Jones had handed it over to Mr. Perkins. This was the same money that was counted over at the house. I had a half dollar and gave it to Mrs. Perkins to have the mortgage recorded. There was talk that Mr. Bullock had a mortgage of $700 against the premises of Mr. Perkins at this time. * * * He said he would replace it to the old gentleman, or to father, as they called him. Mr. and Mrs. Perkins said they would give a mortgage to him.”
Christina Perkins was then called as a witness in behalf of the defendants, who testified that she was a daughter of the deceased, and that in July, 1892, Theron Bullock held a mortgage of $650 on the premises described in the complaint. Continuing her testimony she said: “ There was a time prior, a short time prior to the first of July, 1892, that I had a conversation with my father in regard to this mortgage. At the time of that conversation tiffs mortgage was unpaid. Not anybody was present when I had this talk. Yes, sir, mother drove in the yard and sat in the buggy. There was a time when this mortgage held by Mr. Bullock was paid. Q. From whom did you receive the money with which the mortgage was paid ? A. *41My father. Mr. Perlcins was present when I received it, not anybody else. Q. State what was said between you and your father in reference to his letting you have this money with which to pay this mortgage ? ” This question was objected to on several grounds; among others, that it was incompetent under section 829 of the Code of Civil Procedure. The objections were overruled and the plaintiffs took an exception. The witness answered: “ A. He said he would give me the money to pay the mortgage if Mr. Perkins would deed me the place.”
There was then a motion made by the plaintiffs to strike out the evidence, which was denied and an exception was taken. Thereupon the following question was propounded to her: “ Q. Co on and state what further was said, if anything, between you and your father in reference to letting you have this money ? ” This question was objected to upon several grounds, and among others, that it was incompetent under section 829 of the Code of Civil Procedure, it being a personal transaction between this witness and the deceased party. The objections were overruled and an exception taken by the plaintiffs. “A. No, nothing only he, as 1 stated, Mr. Perkins, was to' deed me the place if he would give me the money. * * * Mr. Perkins executed me a deed of the premises. * * * Q. State the conversation had between you and your father from the time when he first spoke to you or you to him about letting you have this money to the time when he did let you have it in reference to letting you have the money?” Similar objections were taken and overruled and an exception taken, and the witness answered : “ Father drove in the yard and he asked if the mortgage was closed on the place. I said it was not; he asked when it would be; I said in a few days ; he said-I am going to give you the money to take the mortgage off your place; I said I don’t know as I can pay it up ; he said I will call for it when I want it; he came the next day and proposed to give me the money. He said he would give me the money if Mr. Perkins would deed me the place. Mr. Perkins said he would; Mr. Perkins and Mr. Jones sat down and counted the money for me; that was all that was said that day; father said to Mr. Perkins I can trust you to deed her the place; Mr. Perkins said yes, and he made out the deed the next day. *42Referee: That was all that was said on that day between you and your father ? A. Yes, sir.” A motion was made to strike out this last evidence and denied. The witness continued: “He gave me six hundred and fifty dollars. There was no other occasion when he gave me six hundred and fifty dollars with which to pay this mortgage with. Mrs. Jones was not present; Mrs. Rachel Jones. * * * Mrs. Jones I say wasn’t there at all.”
Subsequently "William Perkins was sworn as a witness in behalf of the defendants and testified that he heard the testimony of his wife, and then the following question was propounded to him: “ Q. Were you at your home on the day spoken of by her when the said Samuel Jones, the deceased, came there and gave her some money ? ” This was objected to and the objections were overruled and an exception was taken by the plaintiffs, and the witness answered: “Yes, sir. Q. You may state what you heard said, if anything, between your wife and Samuel Jones, the deceased, on that occasion in reference to giving your wife money with which to pay a mortgage then held by Mr. Bullock against your place ? ” This was objected to, and the plaintiffs’ counsel was permitted to examine the witness, who, in response to such examination, testified, viz.: “ Mrs. Rachel Jones, one of the plaintiffs, was not present on that occasion. And that was a transaction between Samuel Jones, deceased, my wife and myself.” Thereupon the plaintiffs’ counsel objected upon the grounds, among other things, that “ under section 829 of the Code of Civil Procedure * * * it was a ¡personal transaction between Samuel Jones, deceased, this witness and his wife Christina Perkins, both of whom are parties to this action, and is not concerning the same transaction or communication testify* to by or on behalf of the plaintiffs .in this action.” The objections were overruled and an exception was taken by the plaintiffs, and the witness was permitted to. answer, viz.: “ Well, he came there and my wife and he talked it over; he said if I would give my wife a deed of the place, he would give my wife the money to pay that mortgage, Bullock mortgage. And I told them that I would do so. * * * Q. Was there ever a time after this money transaction when Mr. Jones ever requested of you the payment of this money, the repayment of this money, or the giving of a mortgage, or *43requested the same of your wife in your presence ? ” Similar objections were taken and overruled and exceptions taken, and the witness answered “No.”
We think the rulings to which reference has been made were erroneous.
In Ward v. Plato (23 Hun, 402) it was held, viz.: “ Under section S29 of the Code of Civil Procedure a party cannot be examined as a witness in his own behalf against the administrator of a deceased person, as to any personal transaction or communication had by him with the deceased, unless the administrator has been examined in his own behalf concerning the same transaction or communication.”
In Martin v. Hillen (142 N. Y. 144), in the course of the opinion, it was said: “ Section 829 recognizes the right of a party, suing as executor or administrator, to testify in his own behalf to a personal transaction or communication between the witness and the deceased, if it is otherwise competent. In that case, the adverse party may also testify against the executor or administrator, but the testimony, if it involves a personal transaction or communication with the deceased, nmist be confined strictly to the sarnie transaction or communication to which the executor or administrator has already testified in his own behalf. It was competent for the defendant, if he could, to testify in regard to the same transaction referred to by the plaintiff in her testimony. (McLaughlin v. Webster, 141 N. Y. 76.) Confining himself to that transaction, he could testify to any fact or circumstance that was a part of or involved in it that tended to contradict or weaken the plaintiff’s version of it. Put he could not explai/n, impair or coni/radict the plaintiff s' version by means of another and independent personal ti'ansaction or communication between himself and the deceased. The contention of the defendant’s counsel is that the defendant could testify to any fact or circumstance that concerned the transaction testified to by the plaintiff, and any new or independent personal transaction, between the defendant and the deceased, that tended to contradict it, or show that it could not have occurred, was evidence of that character, and admissible. We think that such a construction of section 829 is not permissible. The words {concerning the same transaction or communication u’ were inserted in the section for the very purpose of rendering such a construction impossible. It would *44open the door for the admission of all the evils which the section was intended to prevent, and would go far towards repealing it entirely, since the testimony of tlie executor or administrator bringing the action in his own behalf, to a single distinct personal transaction or communication, would open the way for the adverse party to testify to any other personal transaction or communication, or to any number of them, upon the ground that they tended to explain or contradict the single transaction or communication, given in evidence by the plaintiffs. This would practically defeat the purpose which the Legislature had in view.”
We think the rulings went beyond the rule thus laid down and explained, and that the evidence received under the rulings presented such evidence upon the critical issue which had been raised between the parties, that we ought not to say that it was not prejudicial to the plaintiffs. (Matter of Eysaman, 113 N. Y. 71; Shaffer v. Martin, 25 App. Div. 512.)
The witness, Christina Perkins, should have been limited to a contradiction of the evidence given by her mother, Rachel Jones, and confined to the transaction mentioned by Mrs. Jones in her testimony. (Potts v. Mayer, 86 N. Y. 302.)
The-defense attempted was to establish a gift inter vivos of the $650, and the burden to make out that defense by clear and satisfactory evidence was cast upon the defendants. Without the improper evidence received from Mr. and Mrs. Perkins, the gift was not established within the rule applicable to such a gift. (Rosenburg v. Rosenburg, 40 Hun, 96; Bump v. Pratt, 84 id. 201; Matter of Manhardt, 17 App. Div. 1.)
The learned ■ counsel for the respondents calls our" attention to Clark v. Bruse (12 Hun, 277) and Kelley v. Burroughs (33 id. 349). We think that these cases do not support the contention of the learned counsel; and due deference to the cases to which we have already referred requires us to hold that the rulings of the referee were erroneous, and that the evidence was prejudicial to the plaintiffs, and that a new trial should be ordered.
All concurred.
Judgment reversed and new trial ordered, with costs to the appellants to abide the event.
Sic.