Matter of Pernisi’s Estate, 296 N.Y. 336 (1947)

The Dead Man’s Statute (CPLR 4519) prohibits a person interested in the event from testifying about personal transactions or communications with a deceased person if the testimony is offered against the deceased person’s estate.

Summary

This case addresses the application of the Dead Man’s Statute in a dispute over a promissory note. The claimant, Pernisi, sought to recover on a note allegedly executed by the deceased. The estate argued the note was paid, offering evidence of checks from the deceased to Pernisi. Pernisi attempted to testify the checks were for a different purpose. The court considered whether Pernisi’s testimony was barred by the Dead Man’s Statute and whether sufficient evidence existed to support the Surrogate’s finding of payment. The Court of Appeals held Pernisi’s testimony was properly excluded but divided on whether the circumstantial evidence supported the finding of payment.

Facts

The claimant, Pernisi, presented a $7,500 promissory note purportedly made by the deceased. The executors of the estate contended the note had been paid. They introduced six checks totaling $7,500 from the decedent to Pernisi. Pernisi conceded she received the proceeds of these checks. She further conceded the checks were not payments under a separation agreement but were payments in addition to those due under the agreement. Pernisi sought to testify that the checks were for a purpose other than payment of the note.

Procedural History

The Surrogate’s Court rejected Pernisi’s offer of oral testimony under the prohibition of section 347 of the Civil Practice Act (the Dead Man’s Statute), finding that the note had been paid. The Appellate Division affirmed the Surrogate’s Court decision. The case then went to the New York Court of Appeals.

Issue(s)

1. Whether the claimant’s testimony regarding the purpose of the checks was properly excluded under the Dead Man’s Statute.
2. Whether there was sufficient evidence to support the Surrogate’s finding that the promissory note had been paid.

Holding

1. Yes, because the Dead Man’s Statute prohibits a person interested in the event from testifying about personal transactions or communications with a deceased person if the testimony is offered against the deceased person’s estate.
2. Yes, because the evidence of the checks, along with the claimant’s concessions, provided a sufficient basis for the Surrogate’s finding of payment. (This holding was the subject of a dissent.)

Court’s Reasoning

The court upheld the exclusion of Pernisi’s testimony under the Dead Man’s Statute, emphasizing the statute’s purpose to protect the deceased’s estate from fraudulent claims. As for the sufficiency of the evidence, the majority found that the six checks totaling the exact amount of the note, coupled with Pernisi’s admission that these checks were in addition to payments under their separation agreement, constituted sufficient evidence for the Surrogate to infer payment. The court acknowledged the inference of payment was not uncontrovertible but emphasized it was the Surrogate’s role to draw inferences from the evidence presented. The dissent argued that while the inference of payment wasn’t a certainty, the Surrogate, as the trier of fact, was entitled to draw that inference from the conceded facts. The dissent quoted Tortora v. State of New York, 269 N.Y. 167, 170, stating, “Inference is never certainty, but it may be plain enough to justify a finding of fact.”