9 How. Pr. 524 | N.Y. Sup. Ct. | 1854
Davis clearly had a direct interest in the event of the suit. He had, sold the cause of action for which the suit was brought to, the plaintiff, and had agreed that the payment of the price should, depend upon the plaintiff’s success in collecting the demand. If . the plaintiff .never collected anything, he never would be liable to pay, Davis anything. When he should -succeed in.collecting the demand; then, and not till then, would Davis have a right of action against him for the $50 which he had agreed to pay as the consideration of the sale. A clearer case of disqualifying interest at common law could
But the Code has declared that no witness shall be excluded on account of his interest in the event of the suit. To sustain the ruling at the trial, it must appear that it is in fact his suit, in which he is called to testify. Of this there is no evidence. It is the plaintiff’s suit. He holds the demand upon which the action is brought by a valid transfer. He alone has the right to take the conduct of the suit, and, if successful, receive the fruits of it. He alone, if unsuccessful, is liable for the costs. In no proper sense of the term can it be said that the suit is prosecuted for the benefit of Davis. All that can be said is, that if the plaintiff recovers the demand in suit, he will owe the witness $50; if he does not, he will owe him nothing. Thus, the witness has an interest in the event of the suit, but has no interest in the suit itself. He cannot discharge the cause of action. He cannot receive the recovery, if it should be had. It is not prosecuted for his immediate benefit. It was error, therefore, to reject Davis as a witness, and a new trial must be granted.
