| N.Y. Sup. Ct. | May 15, 1834
By the Court,
It must be conceded that the plaintiff failed in showing a paper title. He produced no patent from the state, but began with a deed from House, alleged to have been the soldier who merited the lot. If that be admitted as a good source of title, he then shows the title to one half in Thurman; but there the title stops. The deed from Thurman to the lessor was never delivered; for a delivery after his death was no delivery, and the plaintiff,' by admitting title to half the lot in Whitehead, enabled the defendant to show that title in himself.
The verdict is against the charge of the judge and the evidence of the case. The judge stated that the plaintiff could not recover under his deed, unless it was delivered before Thurman’s death. There was no pretence of such delivery. He also stated that the plaintiff might recover upon the tenancy of the defendant, if clearly proved, provided the defendant had actually ousted the lessor. The proof of tenancy was while the lessor was agent for Thurman, and no ouster has been pretended. Even if a tenancy had been shown, it would not estop the tenant from disclaiming subsequently, (the supposed tenant, Woolley, not having entered under the Thurman title,) according to Jackson v. Spear, 7 Wend., 401" court="N.Y. Sup. Ct." date_filed="1831-07-15" href="https://app.midpage.ai/document/jackson-ex-rel-shaw-v-speak-5513757?utm_source=webapp" opinion_id="5513757">7 Wendell, 401. Nor is this a case where the defendant should be estopped by purchasing from Woolley. The defendant, having title to half the lot, wished to obtain possession, and preferred purchasing the improvement MHHMlley, who pretended to no title, rather than to bring a^Bptgainst him.
There were soiro minor points which deserve notice. Aaron Hopkins had no interest; he was in possession of part of the lot, and expected to purchase from the prevailing party, and supposed he could purchase on better terms from the plaintiff than the defendant. This might show a bias which should go to his credibility, but is not that certain interest in the event which excludes a witness.
The plaintiff, by disproving the facts sworn to by his own witness, Woolley, did not violate the rule which prevents a party from discrediting his own witness. He did not attack the character of Woolley, but proved the facts to be different from those stated by Woolley. This he was at liberty to do. If the plaintiff calls the subscribing witness to an instrument, who disproves it, the plaintiff may prove it by other witnesses.
As the plaintiff had only proved half the title in Thurman, under whom he claimed, no rule is violated by proving his pa-
As to the depositions of H. and J. Woolley, the statutes for perpetuating testimony declare, 1. That it shall be taken before any officer authorized to perform the duties of a justice of the supreme court at chambers, the first judge of any county, or a master in chancery. It shall be taken within the county where the witness resides, 2 R. S. 298, 9. Every judge of a county court, being a commissioner in the supreme court, is a supreme court commissioner, and may perform the duties of a justice of the supreme court at chambers. 2 R. S. 281, § 32. Supreme court commissioners are local officers, and are confined, in the execution of the duties, to the district or county for which they are appointed. 1 R. S. 101, § 9, 10, 11. Judge Stevens was a supreme court commissioner for Seneca county, but not for Wayne. Whether he could not have taken the testimony in his own county, if the witnesses had voluntarily appeared before him, is a question not now before us ; but I see no reason why he could not. The witness shall not be compelled to go out of the county where he resides, but if found in another county, the officer of such county has jurisdiction to administer an oath. The depositions were properly excluded.
New trial granted ; costs to abide the event.