Pinney v. Orth. whether Mr. Cook was ever present with him and deceased at any conversation in regard to the distillery. This question was excluded, but was afterwards answered. He was afterwards asked whether he had daily meetings with deceased, at which Cook was present (Mr. Cook having testified to such meetings), and this was excluded. He was asked in which room at the office of deceased he had conversations with him; this was excluded, and the question whether deceased saw him in the dark room was also excluded. We think the referee went too far in excluding the inquiries above referred to. Section 829 of the Code, prohibits the examination of a party as a witness in his own behalf against the executor, etc. of a deceased person, "concerning a personal transaction or communication between the witness and the deceased person." It is contended that the purpose of this prohibition is, in all cases where a personal transction between a surviving party and the representatives of a deceased party comes in question, to confine the survivor to such evidence concerning the transaction as was admissible at common law; and that consequently, if a competent witness testifies to such a transaction, the survivor is not only prohibited from contradicting him directly, but is also precluded from contradicting him indirectly, by testifying to facts which tend to show that his testimony is not true; for it is claimed that any testimony which bears upon the question whether or not the transaction testified to took place, is testimony concerning the transaction, and the surviving party is not a competent witness on that subject, but must rely wholly on common law evidence. We cannot assent to this construction of the section. * § 828. Pinney v. Orth. tions are declared to be competent witnesses in their own behalf, and the special prohibition contained in section 829 is an exception to the general rule. The primary intent of this prohibition is very apparent, and is to prevent a surviving party from proving by his own testimony a personal transaction or communication between himself and a deceased person, which, but for the prohibition, he might do without fear or possibility of contradiction. The language of the prohibition is sufficiently broad to prohibit the survivor from testifying that any particular communication or transaction did or did not take place personally between himself and the deceased; but there we think the prohibition ends, and that it does not preclude the survivor from testifying to extraneous facts or circumstances, which tend to show that a witness who has testified affirmatively to such a transaction or communication, has testified falsely, or that it is impossible that his statement can be true; as, for instance, that the survivor was at the time absent from the country where the transaction is stated to have occurred, and that, so long as the survivor refrains from testifying as to any thing that passed, or did not pass, personally, between himself and the deceased, it is not a valid objection to his testimony that the facts which he states bear upon the issue, whether or not the personal transaction in question took place, or upon the truth. of the testimony by which such transaction is sought to be proved against him. We think that Mr. Orth, for instance, was comnetent to testify that he was not in the city of New York at the time referred to by the witness, or that the witness was at some other place, or that he never met the witness at the office where the conversations are alleged to have occurred, and on the same principle, we see no reason why he should not have been allowed to testify that the witness was never present at that Pinney v. Orth. office when any conversation took place between Mr. Orth and the deceased, so long as he refrained from testifying to anything that was or was not said between him and the deceased. The fact that the interviews between the party and the deceased did not occur at the place named by the witness, but in a different room, we think was an independent fact, inquiry as to which did not trench upon the rule. It was not testimony as to the transaction itself, but as to the fact, whether the witness saw the party and the deceased together at the place named by the witness. A party surely ought to be allowed to testify that he never was in a particular house, or room, or never met the witness or the deceased there, for the purpose of contradicting the witness who testified to a transaction between them at that place. The plaintiff's counsel contends, that although the referee may have erred in excluding some of the questions put to the witness Streib in relation to the case of Friend v. Orth, the error is immaterial, because the referee, by reason of proof on the part of the defendants, disallowed the claim for services of the deceased in that suit. This is not, we think, a sufficient answer. Streib testified as to other claims which were allowed by the referee, and the allowance of these claims depended largely upon the credit to be given to his testimony. His testimony in relation to the Friend suit was material to the issue, and the defendants were entitled to the benefit of any contradiction in respect to this which would have tended to impeach his credit or accuracy. Certain questions were asked of Orth touching what the deceased did in the case of Greener v. Orth, whether he put in an appearance, drew an answer, &c., as testified to by Streib. The exclusin of these questions was held by the court at general term to be Pinney v. Orth. erroneous, as they did not relate to personal transactins with the deceased; but the court attempted to cure the error by requiring the plaintiff, as a condition upon which the judgment should be affirmed, to stipulate to deduct from the recovery the amount allowed for services in that suit. We cannot sustain this course as a precedent. It deprives the defendants of any advantage they might have from a material contradiction of the plaintiff's witness. Such a course would be proper only in case the evidence of the witness related solely to the item rejected, and his whole testimony could be stricken out without affecting the residue of the recovery. It is possible that the evidence excluded may not in this case have materially affected the result, but to cure the errors on that ground, it must appear as a matter of law that the result could not have been thus affected. The questions involved are constantly arising on the trial of causes, and to sustain the rulings in this case would afford a precedent which might be attended with very serious consequences. The judgment should be reversed and a new trial ordered, costs to abide the event. "All concur, except EARL and DANFORTH, JJ., who dissent as to admissibility of Orth's testimony regarding a conversation he had with deceased in presence of Streib." McCall v. Frith. McCALL v. FRITH, ET AL. N. Y. SUPERIOR COURT, SPECIAL TERM, Nov. 1881. 38 620, 3268. Security for costs.-Undertaking given on procuring injunction does not affect defendant's right to.—Undertaking on injunction applies only to damages sustained by reason of the injunction. The fact that an undertaking has been given by a non-resident plaintiff on obtaining an injunction order, does not affect the right of the defendant to have security for the costs of the action. Such undertaking applies only to the damage which the defendant may sustain by reason of the injunction,* and the costs of the action cannot be recovered from the sureties therein. *The undertaking mentioned in section 620 must be to the effect that the plaintiff will pay to the party enjoined such damages, not exceeding a sum specified in the undertaking, as may be sustained by reason of the injunction, if the court finally decides that the plaintiff was not entitled thereto; but there is no requirement that it shall provide for the payment of costs. In this latter respect, it differs from the undertakings mentioned in sections 611, 612, 613 and 616. The limitation of the undertaking to damages only, in cases when special provision is not otherwise made by law for security to be given upon an injunction order, may be traced from the rule of the court of chancery. Chancery rule 31 of revision 1830, after providing that in certain cases application for an injunction could be made only to the chancellor or vice-chancellor having jurisdiction of the case, thus qualifying the power of the injunction master under rule 30, concluded: “And in any case where no special provision is made by law as to security, the officer allowing an injunction may, in his discretion, require of the complainant or his agent, a bond with security, or his own bond only, to the party enjoined, in such sum as may be deemed reasonable, conditioned to pay such party all damages he may sustain by reason of the injunction." Excepting the 43rd rule of chancery in force prior to the revision of 1830, which provided for a deposit upon the issuing of an injunc |