9 How. Pr. 501 | N.Y. Sup. Ct. | 1854
It is insisted that the decision of the referee in allowing the witness, Fellows, to be examined, was doubly erroneous: first, because the suit was prosecuted for his immediate benefit; and, second, because, though otherwise competent, the defendants were entitled to •notice that he would be examined upon the trial. Both grounds of objection are sustained by authority. In Fitch agt. Bates, (11 Barb. 471,) where an insolvent debtor had assigned his property in trust for his creditors, it was held that the assignor
At common law, a witness was disqualified when he had any legal, certain, and immediate interest in the event of the action. The 398th section of the Code abrogates this rule. It declares that the witness shall no longer be held to be disqualified for such cause. But for the succeeding section a witness could never be rejected on the ground of interest. That section retains the common law rule so far as it would disqualify a party to the action, or any other .person for whose immediate benefit the action is prosecuted or defended. So far, then, as it relates to the question of interest, the doctrine of the Code is this: that a witness shall not be rejected because he has an interest in the event of the action, even though that interest be direct and immediate. But he shall be rejected when the suit is prosecuted or defended for his immediate benefit. If the owner of a debt bring his action to recover it, and afterward assign the demand, the suit may proceed in the name of the original plaintiff, but it will be prosecuted for the immediate benefit of the assignee. If the debt is collected, he will have the legal right to receive it. If the plaintiff is unsuccessful in the action, he will be ordered to pay the costs of the defence. Though his name does not appear upon the record, he is the real plaintiff in the action. In such a case the assignee not only has a legal, certain and immediate interest in the event of the suit, but it is prosecuted for his immediate benefit. The inquiry, therefore, is no longer whether or not the witness will
This construction of the terms used in the 399th section is sustained by the corresponding, provision found in the 396th section, which authorizes the adverse party in the action to examine “ the person for whose immediate benefit the action is prosecuted or defended, in the same manner and subject to the same rules of examination as if he were named as a party.” Thus the real party in interest may be regarded by the adverse party as the party to the action. Such a party is called “ the person for whose immediate benefit the action is prosecuted or defended.” No one would pretend that any person, whatever his interest in the event of the suit, could be examined as a witness under the provisions of the Code authorizing the examination of a party to the action, if he be not, in truth, the real party in interest. ' Suppose, that, in Fitch agt. Bates, above cited, the Leonards, the assignors, had been .examined under
The construction which, in Fitch agt. Bates, has been given to the clause under consideration, completely neutralizes the 398th section of the Code, and, in effect, retains the common law rule of disqualification: “ If the result of the cause will directly and immediately affect any right or interest of the person proposed as a witness, and adversely, if against the party calling him, then, says Mr. Justice Hand, ‘he is inadmissible.’ ” “ At common law,” says the same learned judge, “ the interest, to disqualify, must be some legal, certain, and immediate interest in the result of the cause.” The two propositions, as I, understand them, are in substance identical, and thus, what was intended to be a mere restriction upon the operation of the general principle declared in the 398th section, is made to destroy it altogether—a construction which will produce this effect must, of course, be defective. Instead of the common-law rule, which disqualified the interested witness, the legislature intended, to adopt the general principle that a witness should not be excluded on the ground of interest. This is declared in the 398th section. To prevent misapprehension, and not to. impair the operation of the general principle, it was declared in the next section that it should not be applicable to parties to the action, nor, as I understand the language adopted by the legislature, to those who, though not parties upon the record, are the real parties
It being determined that the witness, Fellows, was not disqualified by reason of his interest in the event of the suit, the remaining inquiry is, whether the plaintiffs could avail themselves of his testimony without giving the notice specified in the last clause of the 399th section. Here, again, I am constrained to differ with my learned brethren in the fourth district. The construction given to this provision in Knickerbocker agt. Aldrich, above cited, cannot, as it seems to me, (and I say it with the most undissembled respect for the distinguished judges w’hose decision I thus venture to question,) be sustained. To prevent fraud and injustice, the legislature, in the original adoption of the Code, had declared that when it should appear that an assignment had been made for the purpose of making the assignor a witness, the principle adopted in the 398th section, that a witness should not be excluded on the ground of interest, should not be applicable to the case But this provision was found to be insufficient to meet the evil contemplated by the legislature. Accordingly, in 1851, it was abolished, and, in place of it, a more equitable and effective provision was substituted. Now, the assignor, even though he may have made the assignment with a view to become a witness in an action by his assignee, is not disqualified, but, on the other hand, the other party to the contract or transaction, which is the subject of the action, though himself a party to the suit, may become a witness on his own behalf. Thus, when one party, by means of an assignment, has become legally qualified to become a witness, and the assignee will avail himself of his testimony, the other party to the contract or transaction shall also be héard. Audi alteram partem is the
In the case now under consideration, the defendants were one of the contracting parties. The action having been
The only other point upon which the defendants rely relates to the chattel mortgage. The mortgage had been executed prior to the insurance. It was payable on demand. The mortgagors had covenanted to keep the property insured,.and to assign the policy to the mortgagees. Under these circumstances, there can be no doubt that the mortgagors had an insurable interest. There is no evidence that payment had been demanded. If not, the mortgagee’s title had not become absolute. But even if it had, the mortgagors would still have had an equity of redemption, which would have been sufficient to constitute an insurable interest. No error appears to have been committed upon the trial, and the Judgment must be affirmed.