On appeal from the Hudson County Circuit Court.
For the appellants, William J. Baker (Samuel Tartalsky, of counsel).
For the respondent, John L. Ridley.
The opinion of the court was delivered by
TRENCHARD, J. This is defendants' appeal from a judgment entered upon the verdict of a jury, in favor of the plaintiff-respondent.
Plaintiff-respondent, Ida Pontery, as executrix of the estate of William Kleinschmidt, deceased, brought suit to recover $1,000 together with interest, on a promissory note made by the defendants-appellants, Adolph H. Peters and Lena Peters, in favor of plaintiff's decedent, William Kleinschmidt. The note was dated July 1st, 1933, and by its terms became due and payable one year from that date. An answer was filed by the defendants in which they deny the execution of the note and deny the allegation of non-payment. Also the defendants filed a counter-claim which alleged, in effect, that the defendants had furnished plaintiff's decedent with board and lodging; that they had rented to him a storage room and workshop and provided certain transportation for him.
At the trial of the case, the defendants admitted signing the note. Plaintiff, executrix, was sworn and testified that she was the daughter of the decedent, William Kleinschmidt; that her father died on May 22d, 1934. She presented in evidence her letters testamentary. She testified that she found the note, which was admitted in evidence, in her father's safe deposit box in the Hudson Trust Company where she went with officers of the inheritance tax bureau. She testified that she had demanded payment of the note, but it had
never been paid to her, although the defendants made some sort of a proposition respecting the giving of a mortgage, which proposition was refused. Plaintiff then rested.
Thereupon Adolph H. Peters, one of the defendants, was called as a witness and testified that he knew the plaintiff's decedent in his lifetime and testified that he had a conversation with the deceased about November 1st, 1932. He was then asked whether that conversation related to the particular note. This question was objected to and overruled, as being within the prohibition of section 4 of the Evidence act. Other questions respecting transactions with the deceased were duly objected to, which objections were sustained, although the defendants contended that the plaintiff, having taken the stand and testified as to the finding of the note, had opened the door for testimony by the defendants as to transactions and conversations by and with the deceased. The defendants then presented other witnesses who testified respecting alleged services supposed to have been rendered by the defendants to plaintiff's decedent. This testimony was met by the plaintiff, in rebuttal, and the question was submitted to the jury which found a verdict in favor of the plaintiff against the defendant for the amount of the note with interest.
The only question presented by this appeal is, therefore, whether or not the plaintiff, by taking the stand and testifying that she found the note and that it had not been paid to her, had opened the door for testimony by the defendants as to transactions with and statements by the deceased.
The solution of that question of course requires an examination of the scope and extent of the bar set up by section 4 of the Evidence act (2 Comp. Stat. 1910, p. 2218, as amended by chapter 163, laws of 1931, page 305), which act reads as follows:
"4. In all civil actions any party thereto may be sworn and examined as a witness, notwithstanding any party thereto may sue or be sued in a representative capacity or as a guardian of a lunatic; provided, this section shall not extend to ...