Conklin, J.c.c. (temporarily assigned).
The plaintiff, Luther Doby, instituted this action in the district court against the executor of the estate of Elizabeth Villaume for services performed and materials supplied in the amount of $1,000, later amended to $2,000. On the motion by the defendant, the wife of the plaintiff, Alice Doby was brought in as a third-party defendant. Upon being made a third-party defendant to this action, Alice Doby filed a cross-claim against the estate, alleging in substance that for work and services performed the decedent contracted to devise a summer bungalow in the Township of Sparta to her. The defendant denies the allegations of the complaint and the cross-complaint. He contends that any services rendered and materials furnished were on a voluntary basis and that there was no promise expressed or implied to devise the property in question to the cross-complainant.
At the outset the court takes this opportunity to frown upon the practice which was employed in the district court of allowing the third-party defendant to be brought in as a party to this action. R.R. 4:14-1 circumscribes the factual pattern under which this rule allows a defendant to "implead" a third-party defendant. In brief, the essence of the rule states:
"* * * A defendant may move * * * for leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action, who is or may be liable to him for all or part of the plaintiff's claim against him."
Thus it may seem that the third-party practice enables a defendant to bring in a stranger to the action, denominated a "third-party defendant," in order to pass on to that defendant the liability which the plaintiff has asserted against the defendant. Sattelberger v. Telep , 14 N.J. 353 (1954).
Nor is the court of the opinion that Alice Doby should have been joined as a necessary party under R.R. 4:32-1. This conclusion is a necessary product of the fact that the claims asserted by both the plaintiff and the third-party defendant are independent of one another and in no way are dependent upon each other.
Because Alice Doby was joined as a third-party defendant, some clarifying remarks are in order vis-a-vis the competency of the testimony of Alice Doby in support of the claim of Luther Doby, and the testimony of Luther Doby on the claim asserted by Alice Doby.
N.J.S. 2 A:81-2, the so-called "Dead Man's Act," proscribes testimony "when one party to any civil action is * * * sued in a representative capacity, no other party thereto may testify as to any transaction with or statement by * * * the decedent * * *." Because the third-party defendant was improperly joined as a party, the court feels that the aforementioned statute is no inhibition when it states that "no other party" may testify. The third-party defendant is at most a nominal party, and her presence in the case should not blind us to the reality that her claim upon the estate of the decedent is separate and distinct and in no way a concomitant part of the claim of the plaintiff. Nor are the parties disqualified under the above statute because they stand in a position of husband and wife. In Trust Company of New Jersey v. Farawell , 127 N.J. Eq. 45 (E. & A. 1939), it was held that where it was sought to establish a trust in bank accounts maintained by a mother in favor of two daughters, testimony of the husbands of the two daughters with respect to conversations or transactions
with the mother after her demise was admissible. In Wooster v. Eagan , 88 N.J.L. 687 (E. & A. 1915), it was held that in a suit brought by a husband for services rendered by his wife to the defendant's intestate under an agreement made between the wife and the deceased in her lifetime, the wife is a competent witness as to transactions with the deceased. The cases are replete with holdings that the mere fact that a party testifying will benefit by the receipt of his testimony into evidence does not per se ...