We cannot interfere with the referee’s findings of fact in this case. The evidence was conflicting, and although we would have been better satisfied had the findings been the other way, yet the referee having the witnesses before him, and hence a much better opportunity of judging of their veracity, has credited the story of the plaintiff’s witnesses and we cannot say that he ought not to have done so.
We must reverse the judgment, however, by reason of the admission of the evidence of Benjamin Sherwood, one of the next of kin of the defendant’s intestate.
The intestate died leaving a wife, but no father, mother or children.
*128The witness was his nephew, and hence one of his next of kin and entitled to share in his estate. This action was brought to reach and lessen the assets which would go to the next of kin. The witness was therefore interested in the event of the suit, and by section 399 of the Code such a person is prohibited from being examined as a witness in such a suit.
At common law this witness would have been competent, being called to testify against his interest.
But the section cited allows of no inquiry into the nature or extent of the interest. It says he shall not be examined. To admit the witness is to override the statute.
The judgment must be reversed and new trial granted, costs to abide the event.
Present- — -MulliN, P. J., Smith and Taloott, JJ.Judgment reversed and new trial granted before another referee, costs to abide event.