quaintance of many years with deceased, and that on one occasion she saw deceased in a fit; and further, that she was at the house of deceased for a period of four days, which was some ten days before the execution of the will. Witness was then asked: "State Lodema's actions, conduct and sayings on the 16th, 17th, 18th and 19th of October"-being the aforesaid four days. To this question it was objected that the witness was disqualified by the statute, as it called for a personal conversation between the witness and deceased. The objection was sustained and exception was taken.

Wayland F. Ford, for applts. Levi H. Brown, for respt. Held, That the interest of the witness in the event of the suit is within the rule of disqualification. 1 Greenl. Ev., § 390; 62 N. Y., 83; 78 id., 283; 53 id., 298; 24 Hun, 328; 3 Paige, 440; 11 Hun, 222; 8 Barb., 618; 4 Keyes, 525; 20 N. Y., 412. But it cannot be said that the inquiry necessarily called for a personal transaction or conversation between the witness and deceased. The witness may have observed and heard the conduct and sayings of deceased without the testatrix being conscious of her presence. We cannot assume that the parties were alone or had a personal interview; that fact was for the proponent to bring out. 59 N. Y., 336.

The prohibition does not extend to conversations had between deceased and third persons, which were overheard and listened to by

Defendant agreed with M. to buy for him 100 shares of stock, M. to pay 20 per cent. down, defendant to hold the stock until full payment and to credit M. with dividends earned in the meantime. The purchase was made by defendant in April, 1873, and M. continued to pay until April, 1877, when defendant acknowledged full payment. In fact, defendant sold the stock in March, 1874. Defendant was indicted for false pretences based on a payment made by M. to him in March, 1876. Held, That statements rendered M. by defendant of dividends earned after the sale and before March, 1876, were properly admitted and were representations by defendant that he still held the stock; that the question of the effect of the lapse of time (two months) between the last dividend statement and the payment of the money laid in the indictment was for the jury; also, that conversations relative to the purchase had in March, 1873, between M. and the defendant were properly admitted.

The defendant B. was indicted for obtaining money of one M. by the false pretence that he had purchased for M. and then, on March 30, 1876, held for him 100 shares of N. Y. C. stock. It appeared that in April, 1873, defendant informed

M. he had bought the stock for him, and M. continued to pay moneys and allow defendant to apply dividends on the purchase price until, in April, 1877, defendant admitted that he had been paid in full. In fact, defendant without the knowledge of M. sold the stock in March, 1874. The agreement for purchase in 1873 was that defendant should buy the stock for M.; the latter to pay 20 per cent. cash and defendant to hold it until full payment. M. was a clergyman and a friend of defendant. Under objection the prosecution were allowed to show that defendant wrote to M. in April, 1874, that he should credit his account with dividend on his stock. Also a letter of similar tenor written in March, 1875. This letter said defendant would hold the stock as long as M. wished, and reminded him that he, M., had held the stock through a panic; also a letter advising M. not to sell, written the same week. On March 30, 1876, defendant received the $575 charged in the indictment as a payment on the stock which he had sold about two years before, and M. testified that he had made the payment in reliance on defendant's assertion that he had bought the stock in April 1873, and still had it. Defendant was convicted.

Smith & Wellington, for applt. E. L. Fursman, for the People. Held, That the conviction was proper. Defendant insists that no representations were made at the time the money was paid. But according to his agreement defend

Vol. 18.-No. 5b.

ant was to credit M. with the dividends on the stock. He sent to M. statements of these dividends repeatedly after the stock was sold, and one of these is as late as Jan. 1876. This was about two months before the payment. The question of the time between the representation and payment and the effect it produced was for the jury.

Defendant further insists that M. did not part with the money upon the pretence laid in the indictment, but that he parted with it in reliance upon defendant's promise to deliver the stock when paid for.

But the evidence shows that M. told defendant to buy stock and that he said he had done so. And the evidence would justify the belief that defendant had bought for M. a specific parcel of stock which was M.'s property, subject to future payment in full. 87 N. Y., 561. And it is to be noticed that the proposition was not that M. should buy stock of defendant, but that the latter should buy it for M. of a third person. Defendant stated that he held this and in reliance on that statement the money was paid.

Defendant insists that conversations between M. and defendant in March, 1873, were improper. But it was necessary to show the actual arrangement; and the payment set forth in the indictment was the result of a transaction which began long before. 56 N. Y., 591.

So evidence of subsequent payments by M. to defendant was harmless and may have been necessary to show that M. ultimately

paid in full for the stock, and so was entitled to it.

ed.

Opinion by Learned, P.J.; Boardman and Bockes, JJ., con

cur.

EVIDENCE.

N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT.

Joseph Nunn, Jr., applt., v. George Reitzenthaler et al., respts.

Decided April, 1883.

In an action for the purchase price of a machine, where the defense is that the sale was with warranty and on condition that if it did not work as represented it might be returned, plaintiff is entitled to the benefit of any admissions of defendant tending to es

tablish a satisfaction with the machine and

it is error to exclude them. A copy of a letter in relation to the subject of the action written by plaintiff is admissible to be read in connection with defend

ant's letter in reply thereto.

Appeal from judgment on verdict for defendants and from order denying motion for a new trial on the minutes.

Action for the purchase price of a pony planing machine. Defense, warranty and that relying on such warranty defendants purchased the machine at the price of $100 to be paid in three months, "but if the same would not so work then the same should and might be returned to said plaintiff."

It appears that defendants negotiated for and received the machine in 1876, used it considerably and returned it in 1878. Plaintiff called one D., who testified that he met defendant R. and had a

well as it ought to do." Plaintiff then asked: "Did R. say anything on the subject as to whether the machine did or did not do the work he needed it to do?" This was objected to and excluded. Daniel Wood, for applt. D. C. Freely, for respts.

Held, Error. The question was proper to develop the whole of defendant's conversation as to the capacity, quality and power of the machine and the witness ought to have been allowed to answer it. Defendants kept the machine a long time and used it a great deal and a great while without returning it, and it was a question of great importance before the jury whether defendants had used it in their business in reliance upon the warranty, or upon a condition in the contract of purchase that it might be returned. If the latter was the contract, then plaintiff was entitled to every fact which would tend to establish the capacity of the machine and defendants' understanding of it and any admissions made tending to establish a satisfaction with the machine.

Plaintiff testified that he wrote. a letter to defendants about July 26, 1877, and produced a copy thereof and also a letter of one of the defendants which he said he received in answer thereto. The copy of plaintiff's letter was offered in evidence, but was objected to generally and excluded.

Held, Error. From the record there seems to be no reason why

piaintiff's letter, to which defendant replied, should not have been received to be read in connection with the one defendant R. wrote. Connected as the letters were as to the issue they formed parts of a correspondence proper to lay before the jury. 1 Abb., N. S., 233; 14 Gray, 456; Abb. Trial Ev., 677. Judgment reversed and new trial ordered, costs to abide event.

Opinion by Hardin, J.; Smith, P. J., and Macomber, J., concur.

Patrick H. Agan, respt., v. George W. Hey et al., applls.

Decided Oct., 1883.

Whether a former suit is a bar to a pending one is to be determined as a legal question from the record of the former suit and the proceedings had upon the trial. The magistrate's mental conclusions on the law or facts of the case tried before him, not expressed in the record, cannot properly be given in evidence.

Appeal from judgment in plaintiff's favor for $200, in an action originally begun in justice's court, and retried in county court before a jury.

Action for rent. Defendants took possession of the premises, May 1, 1879, at a rental of $275 a year, and vacated Sept. 1, having paid $68.75 rent. Plaintiff claimed that the lease was for a year; and defendants claim they were at liberty to vacate at any time within the year. The pleadings were very general, plaintiff declaring for rent

and

for use and occupation, amount $200. Defendants' answer was a general denial, payment, and former suit in bar, and misjoinder of defendants. In support of their answer of former suit in bar defendants proved that in March, 1880, plaintiff began an action against them and one Duell, for the rent then due, before Hancock, a justice of the peace, and final judgment was entered therein, in their favor, in March, 1880. This action is upon the same contract and for the same cause of action as the former suit. Upon all the proofs, it was a mixed question of fact and law for the justice whether the rent was payable quarterly or at the end of the year. During this trial plaintiff was permitted to prove by the justice that the justice decided the case in defendants' favor upon the ground. that the rent was not due at the time of commencement of suit. To this proof defendants excepted. In making up his record the justice made an entry therein that the case was decided in defendants' favor for the reason that the rent was not due, but this proof was excluded by the court on plaintiff's offer to read the same as part of the record. The pleadings were so general, and the record, as given in evidence, is such, that it is impossible to determine by them alone the real matters tried and determined in that action.

Hancock & Munro, for applts. Frank B. Hiscock, for respt. Held, That if, by the terms of the contract, any portion of the