Opinion
May 9, 1934.
Appeal from Surrogate's Court of Monroe County.
Charles L. De Angelis, for the appellant.
Gerald R. Barrett, for the respondent.
Petitioner made appellant her witness. Even assuming that the witness was hostile, we are of the opinion that it was error to admit in evidence letters written by appellant which tended strongly to discredit her as a witness. ( Becker v. Koch, 104 N.Y. 394, 402.) Decedent's physician, Van Alstyne, was permitted to give testimony which tended "to disgrace the memory of the patient" (decedent). (Civ. Prac. Act, § 354.) This too was error. ( Mulligan v. Sinski, 156 App. Div. 35; affd., 214 N.Y. 678.) However, we affirm the decree for the reason that it does not appear to us that these errors were necessarily prejudicial to the exceptant. (Surr. Ct. Act, § 294.) On the whole record we conclude that the result would have been the same had the testimony referred to been rejected. ( Matter of Newcomb, 192 N.Y. 238.) The decree should be modified in accordance with the stipulation, and as modified affirmed, with costs to respondent against appellant.
All concur.
Decree modified by reducing the amount ordered paid by the Rochester Trust and Safe Deposit Company to the sum of $2,520.86 and interest, and as modified affirmed, under the provisions of section 294 of the Surrogate's Court Act, with costs to the respondent against appellant.