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Digest.

fendant looked over and examined plied for letters patent therefor, the account upon his books, offer- contracted to sell the same to deed in evidence a paper proved to fendants, and to assign the letters be a statement of the account so patent when obtained, for a sum examined; it was objected to on specified; the contract contained the ground that the account had a warranty that said cotton gin not been sufficiently proved; no would“ be equal in all respects to objection was made because of the best saw gin then in use." In the non-production of the books. an action upon the contract, The objection was overruled and wherein defendant sets up a the statement received:

breach of the warranty as a deHeld, no error. (Id.)

fense:

Held, that the testimony of men, 47. In an action to recover damages competent from education and ex

for alleged negligence causing the perience to express an opinion as death of K., plaintiff's intestate, to whether plaintiff's invention upon the cross-examination of S., was in fact equal to the best sav a witness for plaintiff, who had gins, was competent; that the ingiven material testimony for him, quiry related to a matter which and who had been in defendant's was not the subject of general employ, he was asked if he was knowledge, but which depended discharged for inefficiency and on facts, from their nature diffidrunkenness; if he was discharged cult if not impossible to be testi‘at all; and if O., his “ immediate fied to, and it could only be anboss," did not assign these rea- swered by one having peculiar sons for discharging him, to all of knowledge and skill in the use of which he answered “No," 0. was this and other machines. (Scattercalled by defendant's counsel, who good agt. Wood, 79 N. Y., 263.) offered to prove by him that he became aware that S. was in the 49. Plaintiff having given evidence habit of being intoxicated, and

as to the comparative merits of neglected his duty, and that he

this and other machines: was discharged for that reason. Held, that he could not object to This was excluded:

the giving of similar evidence on Held, no error; that the fact of

behalf of defendant. (Id.) his discharge was immaterial; that if the discharge was for inefficien- 50. The declarations of a sole adcy or drunkenness, this could not

ministrator or executor, made, be proved by way of impeach- when not acting in the discharge ment, and was matter collateral

of his duties, to third parties hav. to the issue, as to which the an

ing no interest in or connection swers of S. were conclusive; that

with a claim belonging to the esif such grounds for the discharge

tate, are not evidence against him were communicated to S., it might

in an action brought by him in his lay the foundation of an inquiry

representative capacity upon such as to his feelings toward defend

claim. (Church agt. Howard, 79 ant; but as defendant did not of.

N. Y., 415.) fer to show this, and as it was not disclosed on the trial that the of. 51. In an action, by an administrafer was to show a hostile feeling,

tor, upon a promissory note, signthe question could not be present- ed by H. as surety, the defense ed here. (Kirkpatrick agt. N. Y. was that the note had been alter. C. and H. R. R.R. Co., 79 N. Y., ed, without defendant's consent. 240.)

A witness called for the defense

was asked to state a conversation 48. Plaintiff, who had invented an between her and plaintiff, after

improved cotton gin, and had ap- the death of the intestate, in relaDigest.

tion to the note. This was ob- 54. H. was permitted to testify, unjected to on the ground that the der objection, that F. told him his declarations of the administrator name had been taken off the note, were not evidence against the and that the intestate said she payee of the note. The objection would see his name was taken off. was overruled, and the witness Held, error. (Id.) answered, in substance, that plaintiff stated he erased a clause in 55. So, also, held, as to evidence of the note, at the request of the de- H., to the effect that he did not ceased. Plaintiff was not, at the suppose he was on the note, and time of the conversation, doing that if he had known it he could any business in connection with have obtained security from F. bethe estate, and the witness had no fore his failure. (Id.) connection with or interest in the Lote:

56. Also, held, that the fact that the Held, error; and that the objec

case was submitted to the jury on tion was sufficient to present the

the sole question as to the alterapoint as to the competency of tion of the note, did not remedy such admissions. (Id.)

the error. (Id.) 52. F., the maker of the note for 57. The prisoner was accused of whom H. signed as surety, who

having caused the death of W.,

the deceased, by poison. A phy. was a party defendant, but who

sician who was called to see W. did not answer, as a witness for

when sick from the poison, and the defense, was permitted to tes

who examined and prescribed for tify to personal transactions between himself and the intestate:

him, as a witness for the prosecuHeld, error; that the witness was

tion was asked to state the condi“a person interested in the event,

tion in which he found W. at that within the meaning of section 829

time, both from his own observaof the Code of Civil Procedure,

tion and what W. told him; this and was, therefore, incompetent;

was objected to on the ground

that the evidence was prohibited also, held, that the fact that plaintiff subsequently testified as to the

by the statute (Code of Civil Pro

cedure, sec. 834). The court overfacts sworn to by F. did not cure the error. (Id.)

ruled the objection, and the witness stated what he learned from

his own examination of W., made 53. Another defense was the statute in the presence of W.'s wife and

of limitations. H., as a witness in the prisoner, and from their statehis own behalf, was asked whether ments. There was nothing of a he had any interest in the note, confidential nature in anything he or derived any benefit from it. so learned: This was objected to on the ground Held, that the evidence was comof the incompetency of the wit- petent. (Pierson agt. People, 79 ness under said section. The ob- N. Y., 424.) jection was overruled.

H. answered that he had not; that he 58. After evidence had been given, was an accommodation maker, and on the part of the people, showing had never paid any interest on the an intimacy between Mrs. W. and note, or authorized or directed it the prisoner, who was a married to be paid, or knew that any had man, before and after the death been paid:

of W., and that the prisoner disHeid, error; that the whole tes- appeared from his home February timony was responsive to the ques- 19, 1877, eleven days after the

death of W., the prosecution callpetent. (Id.)

tions put, and all of it was incom-| B., a clergyman, who resided

Digest.

in Michigan; he testified that the the res gesta. (Eighmy agt. People, prisoner called at his residence 79 N. Y., 547.) with Mrs. W., February 26, 1877. The witness was then asked to 61. But; held, that evidence of decstate what took place between him

larations of the deceased, made and them at that time; this was

after the alleged destruction of objected to, and the objection the will, were incompetent. (Id.) overruled. The witness answered, in substance, that he married them, after the prisoner had, un

62. Also, held, that it was competent der oath, stated that there was no

for the prosecution to show that legal objection to his being mar

when A. signed the affidavit sworn ried:

to by him he was imposed upon Held, that the evidence was com

by the prisoner, he substituting it

for another A. had heard read, petent as showing motive, although

which did not contain the clause it tended to prove another crime than that charged in the indict

in question. (Id.) ment. (Id.)

63. Also, held, that the judgment 59. In an action upon a policy of

roll in the civil action was compe

tent evidence. (Id.) fire insurance, it appeared that when the issuing of the policy was reported to defendant by its 64. Upon the trial of an indictment agent, it at once notified him to for assault and battery, the offense cancel the policy, unless the “av- was alleged to have been commiterage clause" was inserted; this ted during an affray at a town notice did not reach the agent un

meeting; one of the witnesses for til after the fire. On the trial de- the prisoner was asked on crossfendant's counsel asked one of its

examination whether he had been witnesses whether “an average

indicted for assault and battery, clause in a policy is favorable or

committed on that day; this was unfavorable to an insurance com- objected to, objection overruled, pany.” This was objected to and and the witness answered “yes": excluded:

Held, that it was a fair inference Held, no error. (Standard Oil

that the witness was indicted as Co. agt. Amazon Ins. Co., 79 N.Y.,

one of the participants in the af. 506.)

fray; and that the question was

competent to show the position he 60. Upon trial of indictment for per

occupied, in respect to the controjury, the testimony of the prison

versy out of which the affray

arose, and his interest in the liti. er, which was alleged to be false,

gation, and as showing prejudice was to the effect that one A. had

or bias. (Ryan agt. People, 79 N. told him that he had took charge

Y., 593.) of all of the papers of E. after his decease, and in moving them lost his will: that he had requested A. 65. It seems, that the mere fact that to make an affidavit of such fact, a witness has been indicted, canwhich he did. The prosecution not legitimately tend to discredit was allowed to prove, under ob- him or impeach his moral charjection and exception, that the acter, and that evidence thereof is testator in his lifetime burned a therefore incompetent (FOLGER paper resembling the will, he de- and EARL, JJ., dissenting, and claring at the time that it was his holding that the allowance of will, and stating its provisions and questions on cross-examination of his reason for destroying it: a witness, as to his having been

Held, no error; that the declara- indicted, are in the discretion of tions were competent as part of the court). (Id.)

Digest.

or

66. One of the witnesses for the with the agents of such person.

prosecution, when asked what he (Pratt agt. Elkins, 80 N. Y., 198.) saw of the occurrence, answered, among other things, “I should judge he (the complainant) struck EXAMINATION OF PARTIES a stone; this was on motion

BEFORE TRIAL. struck out:

Held, no error; as it was not re- 1. In an action for damages for persponsive to the question, and was

sonal injuries a defendant may a conjecture, not knowledge. (Id.)

examine a plaintiff before answer

if it appear that the facts stated in 67. Also, held, that evidence that

the affidavit, upon which the apthe prisoner made an effort to

plication is based, would

end to keep out of the way of the sheriff

support a defense.

(Shaw agt. was competent. (Id.)

Van Rensselaer, ante, 143.) 68. It seems, however, that such evi- 2. The application will be denied

dence is very slight, if any, evi- when the affidavit upon which it dence of guilt. (Id.)

is based fails to specify the special

matters of defense he wishes to 69. Where a party was called as a examine the plaintiff upon. (Id.)

witness by the adverse party, and was examined as to a transaction 3. It was a well settled rule that with a deceased party, in refer

the complainant in a bill of disence to which he would have been

covery must show a good cause precluded from testifying in his of action a good defense. own behalf under the Code of

This is still an indispensable Procedure (86c. 399):

requisite of an application for the Held, that the witness was enti

examination of an adversary. tled, upon cross-examination, to

(McCoon agt. White, ante, 149.) explain his testimony, and to state the whole transaction. (Mer- 4. Whilst there is no reason for rilt agt. Campbell, 79 N. Y., 625.)

introducing the unwarranted and

unwarrantable rule that a party 70. Where the deposition of a party, who seeks to examine his adver

taken before trial, is read thereon sary before trial must swear that without objection, he is not there- he intends to introduce the exby precluded from being exam- amination as evidence on the trial, ined on trial. (Misland agt. Boyn- it is eminently proper to adhere to ton, 79 N. Y., 630.)

the equity practice which required

the party seeking a discovery to 71. Where evidence which is entire- state that he expected to prove by

ly collateral is drawn out on cross- the examination the facts which examination, it cannot be contra- he alleges to lie peculiarly within dicted. (Id.)

the knowledge of the person whom

he seeks to examine. (Id.) 72. The admissions of a witness out

of court are not competent evi- 6. In an action on a promissory note dence to prove his interest in the where the defendant seeks to exlitigation. (Id.)

amine the plaintiff before answer

the affidavit is defective, in that 73. The provision of the Code of it does not state that the defend.

Civil Procedure (sec. 829), prohib- ant expects to prove that the iting a party from testifying, in note in suit was not, either before certain cases, to a personal trans- it matured or at the time of its action with a deceased person, maturity, in the bands of one who does not extend to transactions could have collected it from the

Vol. LX 74

Digest.

defendant, and that it came after examination of parties before trial, its maturity into the hands of the the court cannot refuse to grant defendant. (Id.)

an order for the examination of a

party to an action, actually pend6. The affidavit is also defective ing, nor has it any greater or

where, admitting everything it different power to limit the exalleges, it does not show that the tent of such examination than it defendant has a defense. (Id.) has to limit the examination of

any witness upon the trial. (Har. 7. Since the amendment which was rold agt. New York, &c., R. R. Co.,

made in 1879 to subdivision 6 of 21 Hun, 268.) section 872 of the Code of Civil Procedure, it is requisite and 10. In this action, brought by the necessary, in an affidavit on which plaintiff to recover the price of an application is made for the two hundred and sixty-six bales examination of witnesses where of rags sold to the defendant, the no action is pending, to state what latter, before answering, made an the circumstances are which ren- affidavit stating that the defense der it necessary for the protection was that the sale was fraudulent of the applicant's rights that the and void, and that the goods were witnesses' testimony should be not what they were falsely and perpetuated. (Matier of Ketch- fraudulently represented to be; am': Application, ante, 154.)

that in opening some of the bales

they were found to contain about 8. The meaning of the amendment

one-quarter in weight of substanto subdivision 6 is to require the

ces other than rags, which were of applicant to show that he is in no pecuniary value; that a return danger of losing the evidence of

of the goods was thereupon tenhis right before it could be judi

dered to, and refused by the plainciously investigated.

tiff; that the plaintiff had therethat such danger exists it is incum

after attached the said goods, and bent on the complainant to allege

that the same were then in the that he has an interest, present or

possession of the sheriff, and that contingent, in the property, and

the defendant was, therefore, unthat the defendant has or claims

able to inspect or examine them; to have an interest. He is further

that he desired to examine the bound to show that he is in dan.

plaintiff, to prove the contents of ger of losing his witnesses by

the bales not yet opened, and to sickness, age, death or departure

prove the fraudulent and deceitful from the jurisdiction, or that his

packing and arrangement thereof, case rested upon the evidence of

and to prove the plaintiff's know. only one witness. Where he could

ledge of and connection with such at once bring a suit, he is bound

frauds: to show that it has been com

Held, that an order for the exmenced. If no action is pending,

amination of the defendant was he is obliged to explain why he is

properly granted. (Sprague agt. not able to maintain an action,

Butterworth, 22 Hun, 502.) the ordinary reasons being that the right of action belonged to 11. That if, upon the examination, the adverse party, or that the any questions were put to the adverse party had raised some plaintiff, the answers to which impediment (an injunction for ex- would tend to criminate or deample) to an immediate trial in a grade him, or to subject him to a court of law. (Id.)

penalty or forfeiture, he could

then claim his privilege. (ld.) 9. Under the provisions of the Code

of Civil Procedure, relating to the 12. Upon an application for an order

To prove

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