Bagley v. Osborn, 2 Wend. 527

Bagley v. Osborn

2 Wend. 527 | N.Y. Sup. Ct. | 1829

By the Court, Marcy, J.

I have great doubts whether such an interest was shewn to exist in Stone as rendered him an incompetent witness, even if no releases had been interchanged between him and the defendant. The acknowledgments of Stone, (which should not have been received,) and those of the defendant, were proved to shew the interest of the former. They had several times stated, after the plaintiff had sold his share, that they were partners in the tanning business. This fact was no evidence of an interest in the subject matter of the suit. The partnership might exist without Stone’s being a party to the sale of the plaintiffs share in the concern. Before this sale, he was interested in the business to the amount of one fourth; and even if his share was enlarged, (a fact which was not proved,) it might well have happened without creating any responsibility on his part arising from the sale of Bagley’s interest in the co-partnership. The execution of the papers in relation to this sale in the name of the defendant alone; the making Stone the depositary of them ; the tendering of a quit-claim deed, given in pursuance of the purchase, executed to Ben-net Osborn, and not to Osborn and Stone, to whom it is now alleged the sale was made under the firm of Bennet Osborn, are circumstances very strong to shew that the plaintiff sold his share in the tannery to Bennet Osborn individually, and not to Stone and Osborn, under the name of Bennet Osborn ; and the declaration and acknowledgments proved are not incompatible with this fact. That Stone was jointly concerned in the purchase, appears to me to be a mere suggestion, unsupported by proof, and it should not have been listened to by the referees. (1 Esp. 19, 20.)

But, assuming that Stone was a party to the contract pursuant to which the notes were given, the interest which he had in the event of the suit was reached and removed by* the releases. The plaintiff, by proceeding against Osborn and recovering a judgment against him, would be precluded *531from a resort to Stone, who would be discharged from all liability to the plaintiff, even if he had united with the defendant in giving the notes. This principle is clearly established in the case of Robertson v. Smith and others, (18 Johns. R. 459.) It is a necessary consequence of this doctrine that the partnership property, as such, would not be liable on the execution to satisfy the judgment which might be recovered against the defendant. Allowing, therefore, the demand for which the suit was brought was really due from the defendant and Stone, and that Stone would have been liable to contribute to the defendant one half of the damages and costs, which might be recovered against him, and that thus he was directly' interested before the release in reducing the amount of the plaintiff’s "recovery, the release of the defendant removed this interest. The judgment could not have been satisfied out of his property, and he was discharged from all liability to contribute.

It was urged, on the part of the plaintiff, that Stone was still interested notwithstanding the release, because an execution on the judgment recovered in the suit against the defendant might be levied on the joint property, and the defendant’s right and share therein sold. This objection does not appear to me to be well founded. If such a result constituted a disqualifying interest, every man who holds property "jointly with a defendant would be an incompetent witness for him, however disconnected he might be with the transaction on which the suit was brought. Because the property in which he had a joint interest with the defendant, to the extent of the defendant’s right in it, after satisfying the partnership claims, might be seized to satisfy any judgment which should be recovered against the defendant, it is not an objection to the competency of a witness. Such objection does not appear to me to be well founded in reason, nor can I find that it has been recognized by authority.

I am therefore of opinion that the report of the referees in this case ought to be set aside, on the ground of the improper exclusion of Stone as a witness. This decision renders it unnecessary to examine the question as to the newly discovered evidence.

Motion granted