Bowen v. Sweeney. particularly with reference to the ability of the defeated party to pay the costs awarded against him. Upon the evidence contained in the papers before me as to the relator's occupation and financial condition, I do not think he should be punished for contempt in failing to pay the costs in this matter. The motion of the defendant must therefore be denied. BOWEN, RESPONDENT, v. SWEENEY et al., APPELLANTS, AND BOWEN AND OTHERS, RESPONDENTS. SUPREME COURT, FIRST DEPARTMENT, GENERAL TERM; FEBRUARY, 1892. §§ 539, 540, 829, 1537. Partition-amendment of complaint on trial—competency of witnesstestimony of tenant by courtesy initiate to transaction with decedent. Where a demurrer to a complaint in an action for partition was sustained on the ground that the plaintiff's interest did not appear, and that nothing was alleged with respect to the making of a last will and testament by a decedent under whom the plaintiffs claimed, nor as to the absence of such an instrument, and thereupon the plaintiff served an amended complaint alleging that the decedent died "intestate, unmarried and without issue,” but did not allege the making of any will or the invalidity of a devise thereby, and it was shown upon the trial that the decedent had left a last will and testament which was introduced in evidence, whereupon the plaintiffs sought to attack it by evidence with respect to its execution,-Held, that it was improper then to allow the plaintiff to amend his complaint by Bowen v. Sweeney. alleging the invalidity of such will: [1, 5] that after the notice which plaintiff had received of the defects in his complaint the amendment should not have been allowed upon the trial [1, 5]; that the plaintiff, not being in possession of the property sought to be partitioned, nor of any part thereof, had, as the complaint existed at the time of the trial, no standing in court. [2] In such a case, query, whether or not such an amendment introduced a new, separate and distinct cause of action, such as could not be imported into the complaint in an action for partition upon the trial. [5] The right to maintain an action to partition real property by one claiming as joint tenant or tenant in common, as the heir of a decedent, notwithstanding an apparent devise thereof to another by the decedent, did not exist until the enactment of Laws of 1853, chap. 238, which conferred a new cause of action differing from any that had before existed. [4] The only ground upon which the objection to evidence excluded can be sustained where no ground is stated is that it is irrelevant and immaterial. [7] The husband of a party to an action who claims an interest in real property in litigation as devisee under a will is not incompetent to testify to conversations with the decedent regarding such will, merely because he is a tenant by the courtesy initiate in his wife's share of the property; his interest is simply a contingent interest, not vested, and is no disqualification. [6, 8, 11] The interest which will preclude a witness from testifying to conversations with a decedent under whom the party in whose behalf he testifies claims must be a present, certain and vested interest, and not an interest uncertain, remote or contingent. [9] Hobart v. Hobart (62 N. Y. 80), In re Clark (40 Hun, 233), followed. [10] In an action wherein a will was declared invalid because of fraud and undue influence, testimony to declarations by the decedent with reference to her will made before she executed it and that the will was in her possession for days before she exectuted it, is material, and it is error to exclude it. [6, 12] (Decided February 18, 1892.) Appeal by the defendants, Michael Sweeney, Catherine Gallagher and Francis Gallagher from a judgment of the city court of New York directing a partition and sale of certain real property situate in the city of New Bowen v. Sweeney. York, and adjudging a will made by Mary Theresa Hatton, deceased, invalid. The facts are stated in the opinion. Francis C. Devlin, for defendant, appellant, Michael Sweeney. William H. Arnoux (Arnoux, Ritch & Woodford, attorneys), for defendant, appellant, Catherine Gallagher. Bernard Zwinge, for defendant, appellant, Francis Gallagher. Flamen B. Candler, for plaintiff, respondent, Michael Bowen. Simeon B. Chittenden, for defendants, respondent, Thomas Bowen and others. William J. Kelly, for defendants, appellants, Mary Ann Cane and Catherine Ward. VAN BRUNT, P.J.-This action was brought for a partition and sale of certain property in the city of New York, the plaintiff claiming to be interested therein as tenant in common with certain defendants. [1] The first complaint in the action was demurred to by the appellants, and it was sustained apparently on the ground that no facts were alleged which showed any interest in the realty belonging to the demurring defendants, and that there was no clear averment of fact upon the subject of a last will and testament of Mary Hatton, or the absence of such an instrument. The plaintiff thereupon amended his complaint, alleging that Mary Hatton had died intestate, unmarried, and without issue. To this complaint the VOL. XXII.-6. Bowen v. Sweeney. appellants answered, setting up that the said Mary Hatton had made a will by which she devised to them all her estate, of which the premises in question were part, and that such devisees were in the exclusive possession thereof. The court thereupon made an order directing that the cause be put upon the circuit calendar, to the end that the trial of the action might be proceeded with, and the issues of fact therein contained, or such of them as might be necessary, might be tried before a court and jury. Upon the case coming up for trial at the circuit, the will of Mary Hatton, referred to in the answer of the defendants, was introduced in evidence after proof, and thereupon the plaintiff sought to attack the same by evidence in reference to its execution. Objection being raised, apparently because of the condition of the pleadings, the plaintiff's counsel moved to amend his complaint by an allegation that Mrs. Hatton left what purported to be a will, but which was not her last will and testament, because it was not properly executed, and because she was not competent to make a will, and that it was obtained from her in an unlawful manner by undue influence. Objection was made by the defendants' counsel. The objection was overruled, and an exception taken. The plaintiff's counsel thereupon reduced the amendment to form, and the court stated that the amendment would be granted upon terms; and that, if the defendants desired, a juror would be withdrawn, and the trial postponed. The defendants' counsel stated that he did not desire to postpone the trial, and asked that the amendment be reduced to writing, and sworn to by the plaintiff, which was done, and the trial thereupon proceeded, and upon the close of the testimony certain issues were framed and submitted to the jury. The pe-. culiarity of one of these issues it is not necessary to discuss, in view of the result which follows the decision of this appeal. Bowen v. Sweeney. It is now urged that it was error in the court to allow the amendment which was made upon the trial, and in this view we are inclined to concur. The attention of the plaintiff's counsel was distinctly called to the defect in pleading upon the decision of the demurrer to the previous complaint, and he failed to amend his complaint meeting this objection. On this state of facts, as the complaint existed at the time the trial of the issues was commenced at the circuit, the plaintiff had no standing in court; he not [2] being in possession of the property sought to be partitioned, or any part thereof. Whatever rights he had were conferred by section 1537 of the Code, where it is provided that a person claiming to be entitled as a joint tenant or tenant in common by reason of his being the heir of a person who died holding and in possession of real property may maintain an action for the partition thereof, whether he is in or out of possession, notwithstanding an apparent devise thereof to another by the decedent, and possession under such devise; but in such an action the plaintiff must allege and establish that the apparent devise is void. The right to maintain such an action did not exist prior to the passage of chapter 238 of the Laws of 1853, and hence it is an entirely different action from [3] the ordinary action of partition, which could only be brought where two or more persons held and were in possession of real property, possession being a necessary ingredient to the maintenance of the action. Chapter 238 of the Laws of 1853 was an innovation in the procedure for partition, and conferred a new and different right of action from that which ever existed before. And it may be doubtful whether it is not such a new and separate and distinct cause of action that it cannot be imported into a complaint for partition by amendment. But, whether it was so or not, we do not think that, upon a trial after the notice [4] |