3 Paige Ch. 238 | New York Court of Chancery | 1831
The witness, whose deposition has-been suppressed, appears to have an interest in establishing the claim of the complainants. Although a decree in favor of the defendant in this suit would not prevent this witness from litigating the same question over again with him, it does not follow that a decision the other way is one in which he has no direct interest. If the deed is not reformed, and the defendant recovers the possession of the premises in controversy, the witness, who has a claim prior in point of time to that of these complainants, will not be concluded by a litigation to which he is neither a party or privy. In that point of view he would only be interested in the question, and might still file a new bill in his own name to reform the deed, so far as it affected his rights. But it appears to me- that a decree in favor of these complainants must effectually protect him against any interference with his privileges by the defendant, although such decree should be founded on his testimony alone. The defendant, by bis suit at law, seeks to recover the posses-. sion of the way to the bark-mill, and of the land which is necessary to preserve the water privilege. The defendant cannot disturb the witness in the enjoyment of his privilege, unless he can obtain possession of the land in controversy. And if the complainants succeed in obtaining a perpetual injunction, or in reforming the deed, such possession never can be recovered. The witness is therefore directly interested in-maintaining that possession in the present complainants, and for that reason he was an incompetent witness.
The fact that Weston was the owner of the bark-mill, and was entitled to the water privilege and right of way over the premises in dispute if the claim of the complainants is sustained, was hot disclosed until after the witness’ direct examination had been commenced. The defendant then raised the
The examiner having permitted the examination to proceed notwithstanding the objection, the defendant did not lose the right to apply for a suppression of the deposition by cross-examining the witness as to the merits. The case of The Corporation of Sutton Coldfield v. Wilson, (1 Vern. Rep. 254,) appears to support the position assumed by the appellants’ counsel. The objection was made that the corporators were not competent witnesses ; but, the reporter states, it at length appearing that the defendant had cross-examined some of the witnesses to the merits of the case, the lord keeper declared that made them good witnesses, though they were members of the corporation, and upon their evidence it was decreed for the plaintiff. If it was a question resting in any manner in the discretion of the court, Lord Guilford was certainly right in overruling the objection to the competency of the witnesses in that case ; as their interest as corporators in a municipal corporation was, at most, only nominal. I cannot find, however, that this case has been followed or sustained by any decision in England of a recent date. In the case of
In this state, since the passing of the statute allowing of the examination of witnesses openly, I believe it has been the uniform practice to permit a party to cross-examine bis adversary’s witnesses without prejudice to his right to move to suppress their depositions on the ground of incompetency. The only restriction imposed upon a party in such cases is, that he should make the objection to the competency of tlje witness in due season, so -that his adversary may have an opportunity to remove the objection by a release, or otherwise; or to supply the defect in his testimony by other witnesses, if possible. (2 Paige’s Rep. 60. Rule, 85. And see 7 Wendell’s Rep. 180.)
The course pursued at law now forms a proper guide for parties in the examination of witnesses in this court. Where
The witness, Weston, was incompetent; the objection was properly taken in this case, and it was not waived by the subsequent cross-examination by the defendant. ' The order suppressing the deposition must therefore be affirmed, with costs.
See also Harrison v. Courtauld. 1 Russ. & Myl. Rep. 428.