Digest. fendant looked over and examined the account upon his books, offered in evidence a paper proved to be a statement of the account so examined; it was objected to on the ground that the account had not been sufficiently proved; no objection was made because of the non-production of the books. The objection was overruled and the statement received: Held, no error. (Id.) 47. In an action to recover damages for alleged negligence causing the death of K., plaintiff's intestate, upon the cross-examination of S., a witness for plaintiff, who had given material testimony for him, and who had been in defendant's employ, he was asked if he was discharged for inefficiency and drunkenness; if he was discharged at all; and if O., his "immediate boss," did not assign these reasons for discharging him, to all of which he answered "No." O. was called by defendant's counsel, who offered to prove by him that he became aware that S. was in the habit of being intoxicated, and neglected his duty, and that he was discharged for that reason. This was excluded: Held, no error; that the fact of his discharge was immaterial; that if the discharge was for inefficiency or drunkenness, this could not be proved by way of impeachment, and was matter collateral to the issue, as to which the answers of S. were conclusive; that if such grounds for the discharge were communicated to S., it might lay the foundation of an inquiry as to his feelings toward defendant; but as defendant did not offer to show this, and as it was not disclosed on the trial that the offer was to show a hostile feeling, the question could not be presented here. (Kirkpatrick agt. N. Y. C. and H. R. R.R. Co., 79 N. Y., 240.) 48. Plaintiff, who had invented an improved cotton gin, and had ap Held, that the testimony of men, competent from education and experience to express an opinion as to whether plaintiff's invention was in fact equal to the best saw gins, was competent; that the inquiry related to a matter which was not the subject of general knowledge, but which depended on facts, from their nature difficult if not impossible to be testified to, and it could only be answered by one having peculiar knowledge and skill in the use of this and other machines. (Scattergood agt. Wood, 79 N. Y., 263.) 49. Plaintiff having given evidence as to the comparative merits of this and other machines: Held, that he could not object to the giving of similar evidence on behalf of defendant. (Id.) 50. The declarations of a sole administrator or executor, made, when not acting in the discharge of his duties, to third parties having no interest in or connection with a claim belonging to the estate, are not evidence against him in an action brought by him in his representative capacity upon such claim. (Church agt. Howard, 79 N. Y., 415.) 51. In an action, by an administrator, upon a promissory note, signed by H. as surety, the defense was that the note had been altered, without defendant's consent. A witness called for the defense was asked to state a conversation between her and plaintiff, after the death of the intestate, in rela Digest. tion to the note. This was objected to on the ground that the declarations of the administrator were not evidence against the payee of the note. The objection was overruled, and the witness answered, in substance, that plaintiff stated he erased a clause in the note, at the request of the deceased. Plaintiff was not, at the time of the conversation, doing any business in connection with the estate, and the witness had no connection with or interest in the Lote: Held, error; and that the objection was sufficient to present the point as to the competency of such admissions. (Id.) 52. F., the maker of the note for whom H. signed as surety, who was a party defendant, but who did not answer, as a witness for the defense, was permitted to testify to personal transactions between himself and the intestate: Held, error; that the witness was "a person interested in the event," within the meaning of section 829 of the Code of Civil Procedure, and was, therefore, incompetent; also, held, that the fact that plaintiff subsequently testified as to the facts sworn to by F. did not cure the error. (Id.) 53. Another defense was the statute of limitations. H., as a witness in his own behalf, was asked whether he had any interest in the note, or derived any benefit from it. This was objected to on the ground of the incompetency of the witness under said section. The objection was overruled. H. answered that he had not; that he was an accommodation maker, and had never paid any interest on the note, or authorized or directed it to be paid, or knew that any had been paid: 56. Also, held, that the fact that the case was submitted to the jury on the sole question as to the alteration of the note, did not remedy the error. (Id.) 57. The prisoner was accused of having caused the death of W., the deceased, by poison. A physician who was called to see W. when sick from the poison, and who examined and prescribed for him, as a witness for the prosecution was asked to state the condition in which he found W. at that time, both from his own observation and what W. told him; this was objected to on the ground that the evidence was prohibited by the statute (Code of Civil Procedure, sec. 834). The court overruled the objection, and the witness stated what he learned from his own examination of W., made in the presence of W.'s wife and the prisoner, and from their statements. There was nothing of a confidential nature in anything he so learned: Held, that the evidence was competent. (Pierson agt. People, 79 N. Y., 424.) 58. After evidence had been given, on the part of the people, showing an intimacy between Mrs. W. and the prisoner, who was a married man, before and after the death of W., and that the prisoner disappeared from his home February 19, 1877, eleven days after the death of W., the prosecution call Held, error; that the whole testimony was responsive to the questions put, and all of it was incom-ed B., a clergyman, who resided petent. (Id.) Digest. in Michigan; he testified that the prisoner called at his residence with Mrs. W., February 26, 1877. The witness was then asked to state what took place between him and them at that time; this was objected to, and the objection overruled. The witness answered, in substance, that he married them, after the prisoner had, under oath, stated that there was no legal objection to his being married: Held, that the evidence was competent as showing motive, although it tended to prove another crime than that charged in the indictment. (Id.) 59. In an action upon a policy of fire insurance, it appeared that when the issuing of the policy was reported to defendant by its agent, it at once notified him to cancel the policy, unless the "average clause" was inserted; this notice did not reach the agent until after the fire. On the trial defendant's counsel asked one of its witnesses whether "an average clause in a policy is favorable or unfavorable to an insurance company." This was objected to and excluded: Held, no error. (Standard Oil Co. agt. Amazon Ins. Co., 79 N. Y., 506.) 60. Upon trial of indictment for perjury, the testimony of the prisoner, which was alleged to be false, was to the effect that one A. had told him that he had took charge of all of the papers of E. after his decease, and in moving them lost his will; that he had requested A. to make an affidavit of such fact, which he did. The prosecution was allowed to prove, under objection and exception, that the testator in his lifetime burned a paper resembling the will, he declaring at the time that it was his will, and stating its provisions and his reason for destroying it: Held, no error; that the declarations were competent as part of 64. Upon the trial of an indictment for assault and battery, the offense was alleged to have been committed during an affray at a town meeting; one of the witnesses for the prisoner was asked on crossexamination whether he had been indicted for assault and battery, committed on that day; this was objected to, objection overruled, and the witness answered "yes": Held, that it was a fair inference that the witness was indicted as one of the participants in the affray; and that the question was competent to show the position he occupied, in respect to the controversy out of which the affray arose, and his interest in the liti gation, and as showing prejudice or bias. (Ryan agt. People, 79 N. Y., 593.) 65. It seems, that the mere fact that a witness has been indicted, cannot legitimately tend to discredit him or impeach his moral character, and that evidence thereof is therefore incompetent (FOLGER and EARL, JJ., dissenting, and holding that the allowance of questions on cross-examination of a witness, as to his having been indicted, are in the discretion of the court). (Id.) Digest. 66. One of the witnesses for the prosecution, when asked what he saw of the occurrence, answered, among other things, "I should with the agents of such person. (Pratt agt. Elkins, 80 N. Y., 198.) judge he (the complainant) struck EXAMINATION OF PARTIES a stone; this was on motion struck out: Held, no error; as it was not responsive to the question, and was a conjecture, not knowledge. (Id.) 67. Also, held, that evidence that the prisoner made an effort to keep out of the way of the sheriff was competent. (Id.) 68. It seems, however, that such evidence is very slight, if any, evidence of guilt. (Id.) BEFORE TRIAL. 1. In an action for damages for personal injuries a defendant may examine a plaintiff before answer if it appear that the facts stated in the affidavit, upon which the application is based, would tend to support a defense. (Shaw agt. Van Rensselaer, ante, 143.) 2. 69. Where a party was called as a witness by the adverse party, and was examined as to a transaction 3. with a deceased party, in reference to which he would have been precluded from testifying in his own behalf under the Code of Procedure (sec. 399): Held, that the witness was entitled, upon cross-examination, to explain his testimony, and to state the whole transaction. (Merritt agt. Campbell, 79 N. Y., 625.) 70. Where the deposition of a party, taken before trial, is read thereon without objection, he is not thereby precluded from being examined on trial. (Misland agt. Boynton, 79 N. Y., 630.) 71. Where evidence which is entirely collateral is drawn out on crossexamination, it cannot be contradicted. (Id.) 72. The admissions of a witness out of court are not competent evidence to prove his interest in the litigation. (Id.) 73. The provision of the Code of Civil Procedure (sec. 829), prohibiting a party from testifying, in certain cases, to a personal transaction with a deceased person, does not extend to transactions VOL. LX 74 4. The application will be denied when the affidavit upon which it is based fails to specify the special matters of defense he wishes to examine the plaintiff upon. (Id.) It was a well settled rule that the complainant in a bill of discovery must show a good cause of action or a good defense. This is still an indispensable requisite of an application for the examination of an adversary. (McCoon agt. White, ante, 149.) Whilst there is no reason for introducing the unwarranted and unwarrantable rule that a party who seeks to examine his adversary before trial must swear that he intends to introduce the examination as evidence on the trial, it is eminently proper to adhere to the equity practice which required the party seeking a discovery to state that he expected to prove by the examination the facts which he alleges to lie peculiarly within the knowledge of the person whom he seeks to examine. (Id.) 5. In an action on a promissory note where the defendant seeks to examine the plaintiff before answer the affidavit is defective, in that it does not state that the defendant expects to prove that the note in suit was not, either before it matured or at the time of its maturity, in the hands of one who could have collected it from the Digest. defendant, and that it came after its maturity into the hands of the defendant. (Id.) 6. The affidavit is also defective where, admitting everything it alleges, it does not show that the defendant has a defense. (Id.) 7. Since the amendment which was made in 1879 to subdivision 6 of section 872 of the Code of Civil Procedure, it is requisite and necessary, in an affidavit on which an application is made for the examination of witnesses where no action is pending, to state what the circumstances are which render it necessary for the protection of the applicant's rights that the witnesses' testimony should be perpetuated. (Matter of Ketcham's Application, ante, 154.) 8. The meaning of the amendment to subdivision 6 is to require the applicant to show that he is in danger of losing the evidence of his right before it could be judiciously investigated. To prove that such danger exists it is incumbent on the complainant to allege that he has an interest, present or contingent, in the property, and that the defendant has or claims to have an interest. He is further bound to show that he is in danger of losing his witnesses by sickness, age, death or departure from the jurisdiction, or that his case rested upon the evidence of only one witness. Where he could at once bring a suit, he is bound to show that it has been commenced. If no action is pending, he is obliged to explain why he is not able to maintain an action, the ordinary reasons being that the right of action belonged to the adverse party, or that the adverse party had raised some impediment (an injunction for example) to an immediate trial in a court of law. (Id.) 9. Under the provisions of the Code of Civil Procedure, relating to the examination of parties before trial, the court cannot refuse to grant an order for the examination of a party to an action, actually pending, nor has it any greater or different power to limit the extent of such examination than it has to limit the examination of any witness upon the trial. (Harrold agt. New York, &c., R. R. Co., 21 Hun, 268.) 10. In this action, brought by the plaintiff to recover the price of two hundred and sixty-six bales of rags sold to the defendant, the latter, before answering, made an affidavit stating that the defense was that the sale was fraudulent and void, and that the goods were not what they were falsely and fraudulently represented to be; that in opening some of the bales they were found to contain about one-quarter in weight of substances other than rags, which were of no pecuniary value; that a return of the goods was thereupon tendered to, and refused by the plaintiff; that the plaintiff had thereafter attached the said goods, and that the same were then in the possession of the sheriff, and that the defendant was, therefore, unable to inspect or examine them; that he desired to examine the plaintiff, to prove the contents of the bales not yet opened, and to prove the fraudulent and deceitful packing and arrangement thereof, and to prove the plaintiff's knowledge of and connection with such frauds: Held, that an order for the examination of the defendant was properly granted. (Sprague agt. Butterworth, 22 Hun, 502.) 11. That if, upon the examination, any questions were put to the plaintiff, the answers to which would tend to criminate or degrade him, or to subject him to a penalty or forfeiture, he could then claim his privilege. (Id.) 12. Upon an application for an order |
