Opinion
November 20, 1939.
Action based on fraud for the recovery of moneys claimed to have been turned over by the plaintiff to the defendant administratrix's decedent. Judgment dismissing the complaint reversed on the law and a new trial granted, costs to abide the event. As there is to be a new trial, all findings of fact and conclusions of law are reversed. So far as the savings bank accounts items were concerned, the witness Stiens was not disqualified by section 347 of the Civil Practice Act to testify to conversations had with the deceased respecting such moneys. It cannot be determined on this record whether she was or was not disqualified to testify in respect of the $2,000 note item. The ruling must await a development of the degree of interest she has or had in the matter, if any, and the effect thereof under section 347 of the Civil Practice Act. The trial court erred in ruling that other disinterested witnesses whose testimony was proffered were not qualified to testify in reference to conversations had with the deceased or admissions made by the deceased in reference to bank accounts referred to in the complaint. Lazansky, P.J., Hagarty, Carswell, Johnston and Close, JJ., concur.