17 Wend. 18 | N.Y. Sup. Ct. | 1837
By the Court,
It is supposed the witness is still interested, on tlie ground of his liability for the defendants’ costs, in case of a, recovery in their favor. The objection might be fatal were it not for the bond of indemnity. That neutralizes the interest of the witness; for if he should be called on to pay these costs, he has a perfect remedy over against Smith, the beneficial owner of the subject matter of the suit. This principle of [19] evidence was stated upon authority, illustrated and applied in a recent case in the court of errors (Gregory v. Dodge, 14 Wendell, 593.)
Motion to set aside report denied.
Bee note to that case in the second edition of these reports. Under the N. Y. Code, ' the only question would be whether the witness was the person for whose immediate benefit the suit was prosecuted, § 398, 399. Section 399, excludes only persons who are absolutely entitled to the proceeds of the litigation ; not those who ultimately may be entitled to reseivo them from the party to the action. Freeman v. Spalding, 2 Kernan, 373.