Opinion
April 19, 1971
In an action to rescind a deed to real property and for other related and alternative relief, defendants appeal from a judgment of the Supreme Court, Kings County, entered September 28, 1970, in favor of plaintiff in the amount of $14,322.02, impressing a lien in said amount upon the subject real property, etc., after a nonjury trial. Judgment reversed, on the law and the facts, without costs, and case remitted to the trial court for a new assessment in accordance with the views herein set forth: Respondent was awarded an interlocutory judgment on her second cause of action, which was for unjust enrichment. She was found to be entitled to recover moneys expended by her, from her own funds, for maintenance of, and improvements to, premises located at 205 Frost Street, Brooklyn, New York. These premises had been conveyed by respondent's deceased husband to appellants, the decedent's daughters by a prior marriage, shortly before his death. After a court-ordered assessment, respondent was awarded judgment in the sum of $14,322.02, which sum was adjudged a lien against the premises. In our view, the judgment must be reversed. On the assessment, respondent testified, over objection, that she had given her deceased husband money out of her own funds to pay various bills and that he had then personally paid these bills. This testimony falls squarely within the prohibition of CPLR 4519, which bars testimony by the survivor as to a personal transaction or communication between such witness and the deceased. The argument that the deceased was merely a messenger between respondent and the various creditors and was not a party to any "personal transaction" with respondent is without merit. Although appellants concede that the bills were paid, they vehemently dispute the claim that they were paid out of respondent's own funds. Hence, her testimony that she gave this money to the deceased to enable him to make the payments cannot escape the bar of the statute. Inasmuch as such testimony may well have constituted the basis of her recovery, at least in part, reversal is warranted. On the record before us, we have difficulty determining which of respondent's alleged expenditures were established by her impermissible testimony and which by independent proof. Therefore, the matter must be remanded to the trial court for a new assessment, at which respondent may introduce documentary or other independent proof of her expenditures. Hopkins, Acting P.J., Shapiro, Gulotta, Christ and Brennan, JJ., concur.