(dissenting):
It will be observed that the case stands simply and alone on the ■excluded question put to the defendant, whether he signed the note in suit — that is, in effect, whether he made and delivered the note to the payee, from and through whom the plaintiff derived title to it.
I am of the opinion that the ruling of the justice was correct. -On the proof before the court there was a legal presumption ; that is, it stood proved that the defendant made and delivered the note to the deceased payee. The defendant proposed to disprove that fact by his own testimony. This necessarily involved a personal transaction between himself and the deceased from whom the plaintiff derived title. It is said that the proof proposed to be given went but to disprove a legal inference deducible from the evidence put in on the part of the plaintiff. But such evidence would he inadmissible coming from the defendant in a ease like the present. (Johnson v. Spies, 5 Hun, 468; Jacques v. Elmore, 7 Hun, 675; Wilson v. Reynolds, 31 Hun, 46.) But, in point of fact, the proposed evidence pointed directly to a personal transaction between the defendant and the deceased. It related to the making and delivery of the note by the former to the latter — a personal transaction between them. That this was such cannot well be disputed. (Van Gelder v. Van Gelder, 81 N. Y., 625; Denman v. Jayne, 16 *340Abb. [N. S.], 317.) (Holcomb v. Holcomb, 95 N. Y., 316, 325.) Suppose the defendant had been allowed to answer that he did not sign the note, and the justice had then (the case being submitted on. all the evidence) given judgment for the defendant, that is, had. given judgment in accordance with the defendant’s testimony. In-that case would not the defendant’s evidence have gone directly to the matter of a personal transaction between himself and the deceased 1 Certainly such would be .the case, and the evidence-given bearing on such transaction, which the deceased, if living, might by his own testimony contradict, would constitute the basis, of the decision. Plainly, as I think, the question to the defendant was inadmissible. (See remarks of Smith, J., in Welch v. Adams,. 1 Eastern Rep., 545, 546.) The following cases have a bearing on the question and, as I think, sustain the ruling here complained of. (Mulqueen v. Duffy, 6 Hun, 299; Wilson v. Reynolds, 31 id, 46, 17; Oliver v. Freligh, 36 id, 633.) Evidence otherwise inadmissible in a case like the present may be admissible to contradict a statement made by another witness. (Gorham v. Price, 25 Hun, 11 Pinney v. Orth, 88 N. Y., 451.) Such, however, is not the case. (See, also, Koehler v. Adler, 91 N. Y., 657, 658; Lewis v. Merritt, 98 N. Y., 206, which are claimed to support the appellant’s position.) I see nothing, however, in the reasoning in these cases-against the i-uling here challenged. Now, the proposed evidence in answer to the excluded question, was that which the deceased payee, if living, might, by his own testimony, contradict, and did not go-to the contradiction of the statement of another witness. It should hence be excluded, as I think, because within both the letter and policy of the law as declared in section 829 of the Code. The only case I find in support of the claim that the question was admissible-is Evans v. Ellis (22 Hun, 160) reported in a brief memorandum. It is without a citation of any authority in its support and without any reasoning upon the subject, and seems against the entire current of the decisions. It can hardly be deemed authoritative.
In my opinion the judgment of the County Court affirming that of the justice should be affirmed.
Judgment reversed, with costs of all courts.