First Department, December, 1919. E. C. Crowley, for the appellant. [Vol. 190. Arthur J. Westermayr of counsel [Le Roy D. Ball, attorney], for the respondent. PHILBIN, J.: This is an action for conversion. The complaint alleges that on November 23, 1915, plaintiff was the owner of and entitled to the possession of certain money, consisting of bank bilis and coin, and certain railroad bonds; that on that day the defendants unlawfully and wrongfully took and carried away said property and converted it to their own use, to plaintiff's damage. The defendant Kennedy was not served and the defendant, respondent, Paulovico put in a general denial. At the conclusion of the plaintiff's case she moved for leave to withdraw a juror. The application was denied and, on motion of defendant Paulovico, the court dismissed the complaint. The appellant bases her appeal upon errors said to have been committed in the rulings upon evidence and the denial of the motion to withdraw a juror. The plaintiff sued to recover the said property on the ground that it belonged to her husband at the time of his death. She was asked by her counsel the following question: ،، Q. As such administratrix, were you on or about the 23rd of November, 1915, the owner of the property described in paragraph 1 of the complaint herein?" Objection was made on the ground that the question necessarily involved a transaction with the deceased and that the witness claimed title through her letters of administration and was, therefore, incompetent. The witness said that she was suing as administratrix. The court thereupon sustained the objection and exception was taken. This was clearly error, as no testimony within the prohibition of section 829 of the Code of Civil Procedure was called for by the question. The witness was not being examined in her own behalf against the legal representative of the deceased person. She herself was the legal representative and endeavoring to perform her duty as administratrix in seeking to recover property alleged to belong to the estate. A similar ruling upon the same ground was made on motion to strike out testimony of plaintiff that her husband App. Div.] First Department, December, 1919. declared in defendant's presence that "it all belonged to him." The answer was not completed owing to plaintiff's being interrupted by respondent's motion. Apparently the witness was referring to the property in question. The court granted the motion under section 829, and an exception was duly taken. The motion should not have been granted. The personal representative was not prohibited by the section from testifying in her own behalf as to what occurred when respondent was present. (McLaughlin v. Webster, 141 N. Y. 76, 84.) While the proof thus excluded might not of itself have been sufficient to establish plaintiff's case, it was unquestionably material and, taken with other facts, might have presented a question for determination by the jury. Such other facts might readily have been shown if the motion to withdraw a juror had been granted. We think that, under the circumstances disclosed by the record, the trial court, in the exercise of a sound discretion, should have permitted the withdrawal of a juror upon terms. Other conversations between plaintiff and defendant were improperly excluded. The judgment should be reversed and a new trial granted, with costs to appellant to abide the event. CLARKE, P. J., LAUGHLIN, SMITH and MERRELL, JJ., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event. MAUD E. W. (MOLLER) PAULOVICO, Respondent, v. EMILY RODGERS MOLLER, as Ancillary Administratrix, etc., of HAROLD G. MOLLER, Deceased, Appellant, Impleaded with EMMA L. MOLLER and LINCOLN SAFE DEPOSIT COMPANY, Defendants. First Department, December 19, 1919. Evidence - Code Civil Procedure, section 829, construed transactions with decedent - distinction between testimony by claimant and testimony by administratrix seeking to protect estate. In an action of replevin brought against an administratrix to recover possession of securities contained in a safe deposit box which the plaintiff claimed she delivered to her mother, also deceased, for safekeeping, it was not First Department, December, 1919. [Vol. 190. error for the court to refuse to allow the defendant administratrix to testify as to conversations between her intestate husband and his mother to whom the property was given for safekeeping for it would have been testimony given by a party and a person interested in the event, in her own behalf and interest, against a person claiming to derive her title and interest through the other deceased person, that is to say, the mother. But in the said action it was error to refuse to allow the defendant administratrix to testify as to transactions with her husband, the intestate, prior to his decease and to refuse to allow her to state that after her marriage she saw the securities in his possession and also that she saw them in the safe deposit box belonging to the intestate. This, because the administratrix was not making a claim against the estate but, on the contrary, was endeavoring to establish her title as legal representative. APPEAL by the defendant, Emily Rodgers Moller, as ancillary administratrix, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on or about the 18th day of June, 1919, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 7th day of February, 1919, denying defendant's motion for a new trial made upon the minutes. E. C. Crowley, for the appellant. Arthur J. Westermayr of counsel [Le Roy D. Ball, attorney], for the respondent. PHILBIN, J.: This action involves practically the same parties as the case of Moller v. Paulovico (190 App. Div. 1), opinion in which is handed down herewith, except that the parties are here interchanged. However, outside of the fact that both cases involve the construction of section 829 of the Code of Civil Procedure, they are separate and distinct. The plaintiff brought this replevin action to obtain possession of certain railroad bonds, which were in a safe deposit box in the vault of the defendant Lincoln Safe Deposit Company. This box was in the names of the appellant's intestate, Harold G. Moller, and the defendant Emma L. Moller, both of whom were dead when the action was tried. The complaint alleges that plaintiff is the owner of the securities, which she claims were deposited in the box by Emma L. Moller at the plaintiff's App. Div.] First Department, December, 1919. request for the purpose of safekeeping and that they are unlawfully detained by the appellant, Emily Rodgers Moller, widow and administratrix of Harold G. Moller. Emma L. Moller was the mother of the plaintiff and of Harold G. Moller and died a number of months after the action was commenced and after having defaulted in appearing and pleading. No personal claim was made against the defendant Lincoln Safe Deposit Company, and it put in no appearance in the action. The answer of the appellant, Emily Rodgers Moller, as administratrix, denies the plaintiff's ownership of the securities and for a defense and counterclaim alleges that Harold G. Moller and Emma L. Moller rented the safe deposit box as tenants in common and that the securities described in the complaint belonged to Harold G. Moller in his lifetime and that the title to them is now vested in the appellant as ancillary administratrix, and she asks for the return of the securities. The plaintiff, in a reply, denies the appellant's claim of ownership. The verdict, found by direction of the court, was that the title to the securities was in the plaintiff. It is urged by the appellant that the trial court committed reversible error, particularly in rulings as to the admissibility of evidence under section 829 of the Code. The appellant was not allowed to testify as to conversations between her intestate husband and his mother, Emma L. Moller. The ground of the ruling was that plaintiff's alleged title was derived through the mother. Such testimony, if admitted, would have been given by a party and person interested in the event, in her own behalf and interest, against a person claiming to derive her title and interest through a deceased person (the mother), concerning a personal transaction and communication between the witness and the deceased. The ruling of the trial court was, therefore, correct. The appellant was also prevented from testifying as to transactions or conversations with her husband prior to his decease. The witness was asked if after she married her husband she saw any bonds in his possession. This was objected to and the objection was sustained and appellant excepted. She was also prevented from stating what she saw First Department, December, 1919. [Vol. 190. in a safe deposit box belonging to her husband when on an occasion she visited it with him. It will be remembered that appellant claimed that her husband owned the bonds in his lifetime, and that previous testimony in the record related to the husband's interest in the bonds. The questions asked were, therefore, material. Just upon what ground the court excluded them does not appear. The witness was not seeking to testify as to any transactions with the mother, plaintiff's deceased predecessor in title. Confusion seems to have arisen from the fact that the acts of the two dead persons were involved. The testimony was not inadmissible because it related to transactions with appellant's deceased husband. No claim was being made by appellant against his estate. On the contrary, as legal representative, she was endeavoring to establish title to his estate. The deceased person through whom plaintiff claims was not present at the times in question. It must be held that the error in excluding this testimony requires reversal. The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event. CLARKE, P. J., LAUGHLIN, SMITH and MERRELL, JJ., concur. Judgment and order reversed and new trial ordered, with costs to appellant to abide event. JAMES C. AUCHIN CLOSS and Others, as Copartners Doing Business under the Firm Name of AUCHIN CLOSS, Joost & PATRICK, Plaintiffs, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant. First Department, December 19, 1919. Principal and surety when agreement indemnifying employer does not cover loss caused by hired messenger "employee" defined court cannot alter contract. A surety company which gave a bond to indemnify the plaintiffs against any loss arising through any dishonest act of any of the "employees " of the plaintiffs wherever committed and whether committed directly or |