(dissenting). The appellants rely on Rosseau v. Rouss (180 N. Y. 116) to support their objections to the admission of the testimony of the grandmother of Beryl Duncan, the infant plaintiff-respondent herein. This court in the prevailing opinion in Rosseau v. Rouss (supra) clearly excluded the circumstances in this case from the ruling laid down therein, when it stated: ‘ ‘ There is a distinction between a contract by a putative father to pay a.third person for the mere support of his natural child, which was the case in Todd v. Weber (95 N. Y. 181), and an agreement with the mother to settle a fortune upon her child which requires something more than a moral obligation to sustain it.” (Pp. 122-123.)
The facts in Todd v. Weber (95 N. Y. 181) are similar to the facts herein: the child remained at her grandmother’s for nine or ten years and the grandmother provided the child with board, care and clothing, paid all expenses and sent her to school, paying the bills. The testimony there was to the same effect as the testimony in this case. The testator told both the mother and grandmother ‘ ‘ ‘ that he wished ’ them ‘ to take good care of the child and bring her up right, and he would see that it was all right ’ ”. In Todd v. Weber (supra) the grandmother and the mother, as well as the plaintiff and other relatives, testified. This court has held in certain cases that a person from, through or under whom the plaintiff derived an interest was competent as a witness and that when a third person sues on a contract made for his benefit, he does not derive his interest from the party who furnished the consideration for the contract within the meaning of former section 829 of the Code of Civil Procedure (Civ. Prac. Act, now § 347) (Healy v. Healy, 55 App. Div. 315, affd. 166 N. Y. 624; Bouton v. Welch, 170 N. Y. 554).
A different doctrine was upheld in Rosseau v. Rouss (supra) but the prevailing opinion distinguished the earlier cases, and did not overrule them. Subsequently this court followed the earlier cases in Ward v. New York Life Ins. Co. (225 N. Y. 314, 319) in refusing to exclude the evidence of the wife as to personal transactions between herself and her deceased husband for the purpose of establishing an assignment to her of an insurance policy.
*288The facts in the instant case are within the rule laid down in the earlier cases above cited and are specifically excluded by the Rosseau v. Rouss (supra) decision from its application.
In Croker v. New York Trust Co. (245 N. Y. 17, 24), this court reaffirmed the doctrine of Rosseau v. Rouss (supra) as a general rule indicating there may be exceptions. Matter of Browning (280 N. Y. 584) illustrates the wisdom of the court in making a distinction in Rosseau v. Rouss (supra) between a contract for the mere support of a natural child and an agreement to settle a fortune upon a child. In the Browning case (supra) the appellant sought a share in the intestate estate or damages in the sum of $1,000,000. The persons who furnished the consideration in the Browning case (supra) were either under a legal obligation to support the plaintiff or were interested as possible beneficiaries through inheritance from the plaintiff. This was likewise true in the Rosseau v. Rouss case (supra) but this is not so in this case, the grandmother not being liable for the support of the child. Indeed the mother, although legally liable for the support of the child, can testify. (Connelly v. O’Connor, 117 N. Y. 91.)
The Browning, Rosseau and Croker cases (supra) were alike in that the claims were not for mere support of a natural child, but involved the transfer of large sums of money, $100,000 to $1,000,000 from the estates of the decedents to the beneficiaries of the agreements and the persons who supplied the consideration were distributees of the beneficiaries of the agreement.
The present agreement is a contract by the putative father to pay a third person for the mere support of his natural child, the exact type of agreement approved by this court in Todd v. Weber (supra) cited and recognized as continuing authority in Rosseau v. Rouss (supra) and her testimony is admissible as an exception to the general rule cited in Croker v. New York Trust Co. (supra). Even though the grandmother supplied the consideration for the support agreement she is not presently legally liable for the support of the plaintiff. Her chances of inheriting any part of the fund from the plaintiff are, under the most favorable circumstances, remote. Therefore the plaintiff herein did not derive her interest from the party who furnished the consideration (the grandmother) within the meaning of section 347 of the Civil Practice Act.
*289Apart from the testimony of the grandmother, there is sufficient evidence in the record to establish the agreement and support the verdict of the jury. The testimony of the mother which has been held to be admissible is buttressed by the sober, responsible testimony of a doctor Hogans who was a companion of the decedent. The evidence given by the mother and the doctor as to the terms of the agreement was confirmed by the conduct of the decedent in making the payments for about four years prior to his death. Even if the testimony of the grandmother be deemed technically incompetent, the error, if any, was not so prejudicial to the appellants as to call for a reversal of the judgment. (Hutton v. Smith, 175 N. Y. 375; Fulton v. Canno, 200 App. Div. 253.) A new trial will serve no useful purpose but only contribute to the law’s delay. There is ample competent evidence to sustain the findings made, and therefore, under section 106 of the Civil Practice Act, the error must be disregarded.
Accordingly, we dissent and vote to affirm.
Conway, Ch. J., Desmond, Fuld and Froessel, JJ., concur with Van Voorhis, J.; Burice, J., dissents in an opinion in which Dye, J., concurs.
Judgments reversed, etc.