I am unable to agree with the majority of the court in this case. I think the ruling of the learned trial justice excluding the evidence of plaintiff as to her personal transactions with decedent was erroneous. The plaintiff was called in rebuttal after the defendant and his wife, parties to the action, both vitally interested in the result, had testified in their own behalf as to their personal transactions with the deceased covering a period of years and as to statements said to have been made by the dead man concerning the plaintiff. This was not all. They testified that during the period covered by their evidence the plaintiff did not take part in the visits which they made to deceased; that she did not dine at the same table with them and as to various other details, for the evident purpose of leading the jury to the conclusion that plaintiff was not a wife but a servant. They testified that during this period in their dealings with deceased they never heard that plaintiff was married. The negative testimony was as important as the positive testimony, if not more so.
Their evidence did not relate to one specific transaction. It covered a course of dealing for several years. It was intended to establish the status of the decedent and the plaintiff.
Now this evidence by the defendant and his wife opened the door to plaintiff to testify “ concerning the same transaction.” (Code Civ. Proc. § 829.)* What was the “ transaction ” testified to by defendants? What was the “ transaction ” which they endeavored to disprove by testifying to the statements by the dead *660man? It was in my opinion the relationship between plaintiff and decedent, and I think she should have been allowed to negative it. She could not confine her testimony to one specific transaction, because the defendants testified to a series of transactions, to a continuing status."
I think the reasoning of Mills, J., in Farmers’ Loan & Trust Co. v. Wagstaff (194 App. Div. 757, 763) is exactly in point. It may be dictum, as suggested by respondent, but it is the reasoning of a learned judge and it seems to me to be directly in point in the case at bar.
I think that it is unjust to this plaintiff to allow the defendants to place before the jury the words and actions of the dead man and preclude her from doing likewise.
Manning, J., concurred.
Now Civ. Prac. Act, § 347.— [Rep.