114 N.E. 839 | NY | 1916
This is an action to restrain the enforcement of a judgment.
Graydon made a note to the order of defendant's testator, Kidd. Franklin indorsed it before delivery to the payee. The note was not paid, and the Bank of Hamilton, which had discounted it, recovered judgment against Franklin. Later Kidd, the payee, made payment to the bank and obtained an assignment of the judgment. Franklin now says that he indorsed the note for Kidd's accommodation; that as between Kidd and himself, the former was the primary debtor; and that the judgment in Kidd's hands is no longer an enforcible obligation. He asks, therefore, that it be canceled.
The indorsement of the note, though before delivery, gave rise to a presumption that the indorser was liable to the payee (Neg. Inst. Law [Cons. Laws, ch. 38] § 114.) The presumption could, however, be rebutted by evidence that the indorsement was in truth for the accommodation of the payee (Haddock, Blanchard Co. v. Haddock,
Since Graydon was not a party to the action, he was not disqualified as a witness unless he was "a person interested in the event." An interest sufficient to disqualify him must not be "uncertain, remote or contingent" (Connelly v. O'Connor,
I cannot assent to that argument. It seems to me to misinterpret the decisions. To suppose that Franklin, after swearing that he signed for Kidd, will bring another action and swear that he signed for Graydon, is at best a doubtful and remote hypothesis. But the hypothesis, if made, does not change the conclusion. A judgment in this action favorable to Kidd will not be evidence of Graydon's liability. It will not prove or tend to prove as against him that Franklin signed to help him. Graydon will be free, in the improbable contingency of such a claim by Franklin, to try that issue anew. It is true, of course, that a judgment adverse to Kidd will relieve Franklin of liability, and thus remove a possible, if improbable, temptation to seek reimbursement from Graydon. But that is not enough to justify the exclusion of a witness. One is not "a person interested in the event" under section 829 of the Code merely because the *413
outcome may save him the trouble of another lawsuit. There is a difference between an interest in the event and an interest merely in the question (People v. Fisher,
If the possibility of another action were enough, a principal would always be interested in the event of an action against his surety. He could, therefore, never testify to a personal transaction with one deceased to the prejudice of the executor. But the rule is that he may testify, unless his relation to the litigation is such as to bind him by the outcome (Wallace v.Straus,
I do not overlook the cases relied upon by the defendant. In some, as in Church v. Howard (
In the case at bar the relation of suretyship is not conceded. The putative principal and the putative surety unite in disclaiming it. No judgment that can be rendered in this action will establish it. We are asked to hold that a claim which no one threatens, a liability which is repudiated by the only man who could enforce it, is a present and certain menace.
My conclusion is that any interest which Graydon has in the outcome of this action, either to avoid the costs or otherwise, is contingent and uncertain, and that he is, therefore, qualified as a witness.
The judgment should be reversed, and a new trial granted, with costs to abide the event.
WILLARD BARTLETT, Ch. J., HISCOCK, HOGAN and POUND, JJ. concur; COLLIN, J., concurs in result; CUDDEBACK, J., not voting.
Judgment reversed, etc. *415