Opinion
March, 1923.
Judgment reversed upon the law and the facts, and a new trial granted, with costs to abide the event. It was error to permit defendant to testify to the conversation he had with the deceased partner Herschman. ( Manning v. Schmitt, 4 App. Div. 131.) It related to the breach itself and, incidentally, to the market value of the silk, and was, therefore, serious in its effect upon the result. The fact that the plaintiff Rader is claimed to have been present does not affect the intent of the statute, which excludes one interested from maintaining by his testimony an issue which in any degree involved a communication or transaction between himself and the deceased person, and the fact that others were present does not change the character of the testimony. ( Holcomb v. Holcomb, 95 N.Y. 316, 325; Griswold v. Hart, 205 id. 384.) The appeal from the order denying the motion for a new trial upon the ground of newly-discovered evidence is dismissed, without costs. Kelly, P.J., Jaycox, Kelby, Young and Kapper, JJ., concur.