App. Div.]

Fourth Department, March, 1910.

eight years before the commencement of the action, by which it is alleged that said Pauline A. Piffard agreed to purchase the Piffard homestead at Piffard, N. Y., establish therein a home for herself, her family and Mrs. McMillan, and maintain the same during the lifetime of Mrs. McMillan; to set aside certain rooms in said home for the exclusive use of Mrs. McMillan and her maid, furnish heat, light and suitable board for herself and maid, furnish feed for her horses at cost, and that Mrs. McMillan, Mrs. Piffard and her family, during the lifetime of Mrs. McMillan, should live together in the Piffard homestead as one family.

It is alleged that by such agreement Mrs. McMillan agreed to place and leave in said home certain articles of property and furniture she then owned and possessed, the same to be left and to remain in said house for the use therein of Mrs. Piffard and her family and Mrs. McMillan during her lifetime, and that at the death of Mrs. McMillan said furniture and property should become the sole property of Mrs. Piffard.

It was also alleged that Mrs. McMillan agreed that she would pay towards the maintenance of said home for board, rooms and home privileges for herself and maid, stabling for her horses and barn for her carriages, $100 a month for at least eight months of each year, and $100 a month for such time each year as Mrs. McMillan should stay at home in excess of eight months.

It is further alleged in defendants' answers that Mrs. McMillan, in consideration of said agreement to be kept and performed by the defendant Pauline A. Piffard, and in consideration of certain prior services rendered to Mrs. McMillan by Mrs. Piffard, agreed to leave Mrs. Piffard by will a certain interest in a part of real estate situate on the east side of Broadway, in the city of New York, of the value of $47,833, and it is alleged that the agreement was that in case Mrs. McMillan should sell or otherwise dispose of her interest in said real estate, or for any reason fail to leave her aforesaid interest to the defendant, then she would leave the defendant by will an amount in cash or securities equal in amount to the value of Mrs. McMillan's interest in said real estate.

It is further alleged in the answers that pursuant to the provisions of the aforesaid alleged agreement the defendant Mrs. Piffard purchased the Piffard homestead and in all respects carried out and per

Fourth Department, March, 1910.

[Vol. 137. formed the agreement on her part. It is then alleged that Mrs. McMillan on or about the 1st day of June, 1899, pursuant to the provisions of said agreement, placed or left in said home in the possession of the defendant the property and furniture aforesaid, including the articles mentioned in the complaint, and that said articles have since remained in the possession of the defendant, and that by virtue of her rights, interest and special property in said chattels she is lawfully entitled to the possession thereof.

For a second defense and counterclaim the defendant Pauline A. Piffard, realleging the above facts, alleged that Mrs. McMillan, the plaintiff, had failed and neglected to keep and perform the said agreement on her part, had removed or caused to be removed from said home certain of the aforesaid property and furniture of the value of $1,200, and although requested by the defendant to carry out and fulfill the provisions of said agreement, that the plaintiff, Mrs. McMillan, had wholly neglected and refused to comply with the provisions of said agreement and had denied and repudiated said agreement to the damage of the defendant in the sum of $60,559.

The then plaintiff, Mrs. McMillan, served a reply to such answers in which she admitted, in substance, the agreement whereby the said defendant agreed to furnish board and accommodation to plaintiff and her maid at her home in Piffard, N. Y., and the use of her stable and barn for the care of plaintiff's team, carriages and harnesses, at the agreed and stipulated price of $100 a month. It is alleged that it was further stipulated that the maid employed by the plaintiff, when her duties and services were not required by the plaintiff, should assist in the work incident to the home of the said defendant, free of charge; also, that the plaintiff should employ and pay for the services of a coachman to drive such team and care for same and the carriage and harnesses belonging to such outfit; to pay for the food and provision of said team at the actual cost thereof, and it is alleged that it was further agreed that in consideration of the furnishing of said team with pasturage, hay and straw, free of charge, by the defendant, she was to have the services of such coachman and team, carriage and harnesses, free of charge, at all times when plaintiff should not require the same for her own use and enjoyment.

The plaintiff in her reply denies that she ever made or entered into any agreement with the defendants, or either of them, to the

App. Div.]

Fourth Department, March, 1910.

effect that the property which this action was brought to recover should belong to or become the property of the defendants upon her death.

Plaintiff further alleged that the said defendant Pauline A. Piffard did not keep her agreement as to providing a suitable home for the plaintiff; that she and her husband studiously ill treated, insulted and misused her and to such an extent that she was forced to leave the home which they had assumed to provide for her.

In such reply it is further alleged that so far as the counterclaim alleged as a defense to the cause of action relates to the alleged agreement of the plaintiff to make testamentary or other disposition of her interest in the real estate or the avails or proceeds thereof, it did not accrue before the commencement of the action and was, therefore, not available as a defense.

The issues thus joined were, first, were the defendants entitled to retain possession of the chattels in question because of the alleged agreement made in respect thereto by Mrs. McMillan, to wit, the agreement on her part that at her death such chattels should become the absolute property of the defendant Pauline A. Piffard; and, second, was the agreement alleged to have been made in respect to the disposition of the real estate of the plaintiff, or its value, available to the defendants at the time their answers were served because the contingency which by the terms of the alleged agreement, to wit, the death of Mrs. McMillan, had not arrived?

After the service of such answers and the reply of Mrs. McMillan, who was an old lady past seventy years of age, and an invalid, and whose death was expected, she was examined upon commission for the purpose of preserving her testimony. Upon such examination she testified, in substance, that the property and chattels, for the possession of which this action is brought, were owned by her; that she was entitled to their possession; that she had never transferred or conveyed her interest in them to the defendants or either of them. Sometime after such evidence was given, Mrs. McMillan died and her executrix was substituted as plaintiff in this case. When the case finally came on for trial the plaintiff read in evidence the testimony given by Mrs. McMillan, taken upon the commission, substantially to the effect above indicated, and rested. The executrix had thereby established prima facie a cause of action.

Fourth Department, March, 1910.

[Vol. 137.

The defendants were then permitted to testify, over plaintiff's objection and exception, as to the agreement alleged to have been made between them and Mrs. McMillan, substantially as set forth in their respective answers. Such evidence and all of it was objected to because inadmissible and incompetent under section 829 of the Code of Civil Procedure, and the first question presented by this appeal is whether or not such objection was well founded.

I am inclined to concur with brother WILLIAMS in the proposition that the plaintiff having read in evidence the testimony of her testatrix to the effect that she, such testatrix, was the owner of the chattels in question; that she had title to the same and had in no manner parted with such title to the defendants or otherwise, such defendants were entitled to testify in effect that the testimony of such testatrix was untrue because of the agreement which, as they alleged, was entered into between them and her, to wit, that it was agreed that such chattels should be the absolute property of the defendants upon the death of such testatrix, and if such evidence was believed by the jury, of course it would have defeated plaintiff's alleged cause of action.

But the defendants did not stop there. They were permitted, over plaintiff's objection and exception, to establish their counterclaim about which the testatrix had not been examined and had given no evidence, and which involved the proposition that the testatrix had agreed that the defendants upon her death should be entitled to a conveyance of her interest in her New York real estate of the value of $47,833, or in case such real estate had been transferred by the testatrix prior to her death, of a sum of money equal to such value, and as a result of such testimony so given by defendants over plaintiff's objection, the jury rendered a verdict in defendants' favor for the value of the interest in such real estate and the interest thereon since the death of Mrs. McMillan, which amounted to $53,603.72, and the total judgment so rendered, which included the value of the personal property which had been removed and the interest thereon, amounted to $55,818.92.

I conclude that, assuming the defendants were competent witnesses to prove that a contract had been entered into respecting the title to the personal property, which was the subject of the action brought by Mrs. McMillan, and to establish that by reason of such

App. Div.]

Fourth Department, March, 1910.

oral contract she had divested herself of such title, such defendants were not competent witnesses to establish an alleged counterclaim which practically absorbed the greater part of the estate of the testatrix.

As before suggested, the plaintiff had given no evidence respecting such alleged counterclaim. She had not been interrogated as to whether or not she had orally agreed that the defendants upon her death should become entitled to receive between $50,000 and $60,000 of her estate. Her allegation and the whole of her evidence was to the effect that the personal property, the possession of which she was seeking to recover, was owned by her- belonged to her; that she had never transferred or assigned it to the defendants, and, therefore, that she was entitled to its possession.

Assuming, as I have said, that such defendants had a right to controvert that proposition and to show that they were entitled to its possession by reason of an oral agreement which the jury has found existed, does it follow that notwithstanding section 829 of the Code of Civil Procedure, because she gave such testimony relating to such personal property, the defendants are at liberty by their unaided testimony to establish a counterclaim based upon the proposition that the testatrix also agreed orally that they should be entitled to receive between $50,000 and $60,000 of her estate upon her death?

If such is the law, it is indeed a very serious thing for a plaintiff to bring an action in his lifetime to recover the possession of personal property, no matter how trivial its value, and to testify upon commission in anticipation of his death that he was the owner of such property and had never transferred title to the person having possession of the same, because such defendant may allege an agreement with the then deceased owner of the property to the effect not only that by such agreement the title to the property became vested in the defendant, but also because as a part of such agreement the deceased agreed that such defendant should become entitled to a substantial part of his estate or property upon his death.

It seems to me that if section 829 of the Code is to be given any substantial force or effect, it ought at most only to be held that the defendants in this case were at liberty to disprove the agreement testified to by the deceased so far as it affected the property in question, and that they should not have been permitted to give