4 Denio 73 | N.Y. Sup. Ct. | 1847
When the witness was called, there was nothing to show that it was not a case of balanced in
If we strike out the testimony of Blackman, the judgment was right, and should not have been reversed. But as no motion to strike it out was made on the trial, I think the justice was not afterwards at liberty to disregard it. As the plaintiff made no objection on the ground of interest after the fact of interest appeared, he must be deemed to have waived all right to make the objection; and the justice was not at liberty to start the point for him, after the cause had been submitted for decision on the merits. It was a wrong to the defendant; for if the plaintiff had moved to strike out the testimony on the trial, the defendant might have released the witness, and then have re-examined him; or the defence might, for aught we know, have been made out by another witness. The error of the justice has been corrected by the common pleas.
Judgment affirmed