Appellant claims real property through a deed from Frank H. Fisk, Jr., who obtained his title through a deed from his father, Frank H. Fisk, now dead, dated June 28, 1910, and recorded in Albany county clerk’s office July 18, 1910. Plaintiff claims that upon the 28th of June, 1910, she was the wife of Frank H. Fisk, and not having joined in the deed to Frank H. Fisk, Jr., is now entitled to her dower interest in said property. In the evidence appears a certificate of marriage between the plaintiff and Frank H. Fisk, purported to be executed the 23d of October, 1908, in which certificate the ceremony purports to have been performed by one Rev. Thomas J. Howard, and which certificate appears to be in due form. The evidence of Gilbert C. Fisk, a son of Frank H. Fisk, is to the effect that upon said date this certificate was shown to him both by the plaintiff and Frank H. Fisk, and that thereupon the said parties assumed the relation of husband and wife, and thereafter lived together as husband and wife in West Sand Lake, Rensselaer county, until his death, and said Frank H. Fisk introduced her as his wife. Evidence was introduced by the defendant to the effect that there was no such minister as Rev. Thomas J. Howard at Hudson, Columbia county, where the ceremony is certified to have been performed; that the witnesses to the
*87will cannot be found after diligent search, and that the certificate was a forgery. At the beginning of the trial the plaintiff’s attorney announced that he stood upon a ceremonial marriage, executed as certified in the marriage certificate referred to, and the jury has found as a fact that such a ceremonial marriage did take place. This the jury was probably authorized to find under the decision in Matter of Hinman (147 App. Div. 452; affd., 206 N. Y. 653).
Upon the trial of the action the plaintiff was sworn in her own behalf. She was not allowed to swear to the performance of the marriage service, as this was objected to -under section 829 of the Code of Civil Procedure. Under the same objection and an exception, however, she was allowed to swear that upon the day in question she went to Hudson, and that when she arrived in Hudson it was dark, and that they took a carriage to a house and waited until Mr. Howard came; that she was in the house probably a half hour, from which place she went by carriage to the station and again to Albany; that she met George Crum, one of the witnesses, there, and Alice Crum, his wife, and Mrs. Thomas J. Howard. This evidence, I think, was clearly incompetent. The only inference that is sought to be drawn is that she was there with Frank H. Fisk and as corroborating the certificate of marriage. (Matter of Blair, 99 App. Div. 81; Clift v. Moses, 112 N. Y. 427.) As the evidence bore upon the vital question in the case I do not think the error can be disregarded, and for the admission of -this evidence the judgment and order must be reversed and a new trial granted, with costs to appellant to abide the event.
All concurred, except Kellogg, J., dissenting in opinion, in which Woodward, J., concurred.