Opinion
July 31, 1914.
Frank C. Barker, for the appellant.
Charles S. Carrington, for the respondent.
The administratrix of the estate of John W. Carrington, deceased, appeals from an order of the Surrogate's Court of Suffolk county, allowing the claim of the respondent against the estate of her intestate to the amount of $1,646.59, for board and lodging from April 1, 1901, to April 1, 1910, 468 weeks, at $7 per week, $3,276, and for money loaned him between September 17, 1896, and November 15, 1911, amounting to $347.50, and for money advanced to the estate after the death of said intestate, $19.10, amounting in all to $3,642.60 with interest. The surrogate disallowed so much of the claim as was represented by the items prior to November 30, 1905, which he held barred by the Statute of Limitations. As the order must be reversed because of rulings of the learned surrogate in the admission of evidence, an examination of facts involving the disputed account for board will not be made at this time.
The claimant was sworn as a witness in his own behalf and produced seventeen checks with their stubs, which he claimed were evidence of the loans made to the deceased. He was allowed to testify, over the appellant's objection that such testimony was incompetent under the provisions of section 829 of the Code, as to each check, that he made it, that it was indorsed by John W. Carrington, the deceased, and that it was paid. The witness was also shown each stub and permitted to read the same into the record over appellant's objection and exception. The first stub read: "September 18th, 1896, John W. Carrington, loan $20." The reading of the other stubs differed only in their dates and amounts, each having on it the word "loan," and so read. The witness testified that, except in two instances, he did not put the word "loan" on the stubs until he made up his account after his brother's death; notwithstanding this, they were permitted to be read into the evidence in their entirety. In explaining a stub dated August 12, 1907, the claimant testified, over appellant's objection and exception: "As the stub reads, I drew the check to his order for $55, but of that $55 it was only $25 that it was a loan from me." The checks on their face evidence personal transactions between the claimant and the deceased, which were emphasized by his testimony, as to each, that he made it, the deceased indorsed it and it was paid. The stubs also evidenced similar personal transactions and were emphasized by the incompetent testimony of the claimant that they represented loans made to the deceased by him. In addition, if competent at all, they were themselves the best evidence of their contents, and should not have been permitted to be read into the record with the incompetent explanations of the witness. The checks and stubs of themselves did not establish the alleged loans. ( Simons v. Steele, 82 App. Div. 202; Leask v. Hoagland, 205 N.Y. 171; Nay v. Curley, 113 id. 575.) It was only when the incompetent testimony of the claimant, characterizing them as loans, was admitted that they supported his contention. He cannot be permitted to accomplish indirectly what the statute prohibits him from accomplishing directly. ( Koehler v. Adler, 91 N.Y. 658.)
The order and findings of the Surrogate's Court of Suffolk county should be reversed, with costs to the appellant, and the matter remitted to said court for further proceedings.
JENKS, P.J., BURR, CARR and PUTNAM, JJ., concurred.
Order and findings of the Surrogate's Court of Suffolk county reversed, with costs to the appellant, and matter remitted to said court for further proceedings.