(dissenting):
This action is upon a promissory note made by the defendant’s testator, payable to plaintiff or order. On the trial the plaintiff produced the note and proved that the signature was in the testator’s handwriting; the note was read in evidence. This established on his behalf a clear right to recover. The plaintiff was called as *119a witness on bis own behalf, and was asked the question : “Are you the owner and holder of this note ? ” The defendant objected to the question on two grounds: First. “ That it is a question of law and calls for the decision of a question of law.” And, second. “ That the paper, in its form, shows a transaction between witness and deceased.” These objections were overruled, and defendant excepted. The plaintiff answered: “ I am.” He was then asked the following question: “ Has it ever been paid ? ” To this question the same objections were made. The referee overruled the objections, and defendant excepted. The plaintiff answered: “No.” The plaintiff rested; and no evidence on the questions of payment, or the ownership of the note, was given on the part of the defendant, and the referee rendered judgment for the plaintiff for the amount of the note. The only question in the case is, whether it was a fatal error to allow the plaintiff to answer the questions above stated. In my opinion, it was not, for several reasons: First. The note was produced by the plaintiff and fully proved and read in evidence. This made a complete and perfect case on his behalf. The defendant had pleaded payment, but no evidence on that question tending to establish his plea was given or offered. The plaintiff’s counsel, probably in anticipation that such evidence might be given, examined the plaintiff as to non-payment of the note. Assuming that the evidence on this question was incompetent and improperly received, it is altogether immaterial in the case presented to us. The plaintiff fully established his right to recover on the note, and if the evidence objected to be wholly stricken out of the case that right remains perfect. The defendant can not legally be said to have been injured by this evidence, because he made no proof whatever tending to establish the defense of payment. In such a case the court is not called upon to reverse the judgment, because the plaintiff, after fully making out his case by competent evidence, superadded some unnecessary and incompetent testimony on a subject which the defendant did not at all controvert on the trial. Second. The plaintiff was not incompetent to testify that he was, at the time of the trial, the owner and holder of the note. That fact did not necessarily involve a transaction between himself and the deceased. The question was in the present tense, and called only for the condition of things at that time. Neither of *120the objections to that question was, therefore, well taken. To the question, “ Has it ever been paid ?” the objections were not, in my judgment, sufficient in form to raise the point insisted upon. The defendant stands on this appeal on the sheerest technicality. He may, therefore, be properly met by like technicality. His first objection, “ that it is a question of law and calls for the decision of a question of law,” is of no force. His second objection, “ that the paper, in its form, shows a transaction between witness and deceased,” though intended to raise the point that payment would be a personal transaction between witness and deceased, within section 399 of the Code, very plainly does not; and the court is not bound, for the purpose of overturning a judgment because the plaintiff gave cumulative and unnecessary evidence, to give any other construction to the objection than that which belongs to its exact language. The plaintiff was entirely competent to prove that the note had not been paid since the testator’s death, or to give evidence that it had not been paid by any transaction between himself and any person other than the testator, because section 399 only excludes personal transactions between them. It was, therefore, incumbent on the defendant to have pointed his objection to any evidence tending to show non-payment by the testator, in his lifetime, directly by himself, or in any transaction which would be deemed personal within section 399 of the Code. It would be error, doubtless, to allow the plaintiff to give evidence that the testator had not paid the note by any personal transaction in his lifetime ; but as the question covers the whole period before and since the testator’s death, and the objection covers the same period, and as the question also covers transactions not personal with the deceased, and the objection embraces the same, it was, in strictness, no error to overrule the objection. Since the defendant did not give any evidence tending to prove payment, we can not assume that he had evidence which he could have given, but which he was prevented from giving because of the admission of the plaintiff’s evidence. The case is one in which the defendant had pleaded payment, but on the trial abandoned that issue by making no efforts whatever to sustain his plea. He now insists, on appeal, that the plaintiff gave more evidence tending to show non-payment than he was obliged to, some of which was illegal; and although *121enough of competent evidence to recover remains, rejecting the illegal, he insists on a new trial of an issue on which he held the affirmative, and yet gave no evidence. I think if there be any error in this case it is plainly one which caused no injury to the defendant, and falls within the established rule that the admission of incompetent evidence, which does not prejudice the defendant, is not error. (Rowland v. Hegeman, 1 Hun, 491; Bronson v. Tuthill, 3 Keyes, 32; Murray v. Smith, 1 Duer, 412; Crary v. Sprague, 12 Wend., 41 ; Lowery v. Steward, 3 Bosw., 505; Belmont v. Coleman, 1 id., 188; Worrall v. Parmelee, 1 Comst., 519; Ashley v. Marshall, 29 N. Y., 494.) I think the judgment should be affirmed.
Judgment reversed and new trial ordered, costs to abide event.