HERRICK, J.:
The defendant Cardinal's claim to the money in question rests upon an alleged transaction between herself and the deceased, O'Connor; that transaction consisted in the giving of a bank book kept in a tin box. In testifying that she had seen the bank book exhibited to her in such tin box, and that it was the only one in the box, she indirectly testified that that was the bank book given to her by the deceased. She could not testify to that directly, and cannot be permitted to do so indirectly. ( Grey v. Grey, 47 N.Y. 552.)
It was in effect testimony concerning the alleged transaction between herself and the deceased, and consequently obnoxious to section 829 of the Code of Civil Procedure. ( Gregory v. Fichtner, 38 N.Y. St. Repr. 192; Viall v. Leavens, 39 Hun, 291.)
The evidence is material, the error in receiving it cannot be disregarded, and the judgment must be reversed.
All concurred, except SMITH, J., dissenting.
Judgment reversed, referee discharged, and a new trial granted, costs to abide the event.