Opinion
February, 1929.
Judgment reversed upon the law and the facts and a new trial granted, costs to abide the event. The trial court committed error in excluding the testimony of Isadore Stevens at folio 197. Section 347 of the Civil Practice Act excludes such testimony when it is proffered against the administrator of a deceased person. In this case the evidence was proffered on behalf of the administrator of a deceased person. ( McLaughlin v. Webster, 141 N.Y. 76; Paulovico v. Moller, 190 App. Div. 3; Wakefield v. Wakefield, 47 Misc. 87.) Lazansky, P.J., Young, Seeger and Carswell, JJ., concur; Kapper, J., dissents and votes to affirm, being of opinion that section 347 is not in the case at all in so far as affects the testimony of Isadore Stevens, and that, assuming he was qualified to testify by virtue of the release of his rights in the estate, there is nothing in the record to show that he could testify to any material fact.