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Goble agt. Kinney.

Mayor of New York, and of De Baum, &c. agt. The Same, and of Milhau agt. Sharpe, and other cases; in those the corporation was a party, or the object was only to obtain an injunction against the individuals who were defendants. If the defendants have been guilty of the wrongs with which it is intended to charge them, it is important that the action be properly commenced, so that justice may not be defeated in the end. And whether the defendants be guilty or innocent, the charges should be so distinct that they may know what they have to meet, and with such parties before the court, that a final determination of the matter may be made.

The demurrer in this case is allowed, with leave to the plaintiff to amend, if he be so advised, on payment of costs of the demurrer.

SUPREME COURT.

Méton GOBLE agt. ZACHARIAH KINNEY.

Under $ 399 of the Code, it is not necessary to give ten days' notice of the ex

amination of an assignor as a witness, where the action is against the party personally. That notice is necessary only where the action is against the party in a representative capacity-en autre droit. (See 7 How. Pr. R. 1; 16 Barb. 580, & 18 id. 532 adverse.)

Jefferson General Term, July, 1855.

W. F. ALLEN, F. W. HUBBARD, D. PRATT, W. J. Bacon, Justices.

This action originated in a justice's court, and was brought to recover the price of certain sap-buckets and a thrashing machine, sold and delivered by James Bradford to the defendant.

The cause of action was assigned, by Bradford, to the plaintiff. On the trial, Bradford was offered as a witness for the

Goble agt. Kinney.

plaintiff, and objected to by the defendant, on the ground that no notice, in writing, of his intended examination as the assignor of the claim, had been given under § 399 of the Code. The objection was overruled, and the witness permitted to testify.

A judgment for the plaintiff was rendered by the justice, which was reversed by the county court on appeal.

M. B. CHURCH, for plaintiff.
D. C. GREENFIELD, for defendant.

By the Court-HUBBARD, Justice. It was a question of fact for the justice to decide, whether the sale of the machine was conditional or absolute. There was evidence, from which the fact could be found that the sale was absolute, vesting the title in the defendant, and a right of action in Bradford, to recover the price, with a right of recoupment by the defendant, if the stipulated repairs were not made according to the agreement. Upon the conflicting evidence in the case, the finding of the justice must be held conclusive.

The most important question is in relation to the competency of Bradford, the assignor, as a witness in behalf of the plaintiff, his assignee, without previous notice in writing, of ten days, of his intended examination.

In a case like this, I think the notice was not necessary. It has been the settled practice in this judicial district, at circuit, and the principle has also been held at general term, not to require notice except the action is against an assignee, or executor or administrator; in other words, not to require notice in any case, when the action is against the party personally, who made the contract, or incurred the obligation on which the suit is predicated.

This I deem the fair and reasonable construction of 399 of the Code.

The section states the general principle of the admissibility of an assignor of a thing in action or contract, in behalf of his

Goble agt. Kinney.

assignee, and the right of the adverse party to defend himself · by his own oath.

Thus far the section is free from ambiguity or difficulty. But the exception to the general rule has occasioned some diversity of opinion. The exception relates to a class of cases where the defendant in the action is sued in a representative character, as an assignee, or executor, or administrator. In those cases, and those alone, (except when the action is for the immediate benefit of the assignor,) it seems to me, the section was intended to disqualify the assignor as a witness for his assignee, unless, in the first place, the other party to the contract, or thing in action which the defendant represents, is living, and his testimony can be procured for such examination; and, in the second place, unless the ten days' notice, in writing, specifying the points of examination, be given to the adverse party.

These two conditions of the competency of the assignor, are embraced together in one sentence of the section; and, in my judgment, it was intended by the legislature that the latter, as well as the former, should apply solely to a case where the defendant is sued, en autre droit. After the word nor, in the sentence, in order to its grammatical construction, there should be implied the words of the commencement of the section, to wit, “shall such assignor be admitted to be examined in behalf of any person deriving title through or from him, against an assignee or an executor, or administrator, unless,” &c. The section, it seems, would have been differently framed, if it had been intended to establish the general rule, that, in all cases, the notice should be given. The clause expressive of that intent would have found a more suitable and less ambiguous place in the second sentence of the section. As the section is framed, the obvious reading and import is, I think, to limit the exception and condition of the competency of the assignor, to cases, as before remarked, where the defendant is prosecuted in a representative capacity.

This construction conflicts with the practice and decisions in other districts; (7 How. 1; 16 Barb. 580; 18 id. 532 ;) but as those decisions are only of concurrent authority, although enSutherland agt. Tyler, &c.

titled to the highest respect, the mooted question must be deferred to the court of last resort for final adjudication.

In this view of the case, it will not be necessary to inquire whether § 399 of the Code applies to justices' courts.

The judgment of the county court must be reversed, and that of the justice affirmed.

SUPREME COURT.

John L. SUTHERLAND agt. OSCAR TYLER, sheriff, &c.

Before the amendment of the 349th section of the Code, in 1852, a decision sus

taining or overruling a demurrer could not have been appealed from, until after all the issues had been disposed of, and final judgment perfected. That

amendment authorizes an appeal before judgment. But a party cannot, under $ 349 as amended, perfect judgment on an issue of law,

while there are issues of fact undisposed of. Where the plaintiff appealed from the decision overruling the demurrer as a

judgment, and not as an order, and the defendant perfected judgment upon the decision on appeal, while there were questions of fact undisposed of, held, that both parties were in error in their practice; and it appearing that the decision on the question of law was final in the case, and no motion having been made to set aside the judgment, the plaintiff's appeal was regarded as having been taken from an order, and a question of costs finally disposed of. In such case, the defendant should have taxed his costs as upon the trial of an

issue of law, $12, instead of $15 before argument, and $30 upon the argument.

Albany Special Term, March, 1855. Motion for readjustment of costs.

The action was brought by the plaintiff as assignee of Joel B. Nott, to recover the sum of one hundred dollars, alleged to have been paid upon an execution against Nott, in the hands of a deputy of the defendant. It was alleged in the complaint that, after such payment, the execution had been returned wholly unsatisfied; and that since such return, Nott, the defendant, had been compelled to pay the whole amount of the judgment.

Sutherland agt. Tyler, &c.

The defendant, in his answer, denied the allegations in the complaint, relating to the payment of the money by Nott to his deputy, and then set up by way of defence, the recovery of a judgment against Nott, in an action by the assignee of the judgment upon which the execution had been issued, in which the payment of the money to the defendant's deputy had been put in issue, and found against the defendant in that action.

To this part of the answer, the plaintiff, in August, 1851, demurred. The demurrer having been argued at a special term, an order was made by the court overruling the demurrer, and allowing the plaintiff to withdraw. the same, and reply within twenty days, on payment of costs. After this decision, a stipulation was executed by the parties, whereby it was agreed, that the plaintiff should have until, and including, the 15th of July, 1853, for the purpose of withdrawing his demurrer to the answer, replying and paying costs; and that, if such demurrer should not be withdrawn, and the costs paid, by that day, the defendant should be at liberty to perfect judgment for $96.98 costs.

The plaintiff, not having complied with the terms of the stipulation, the defendant, on the 16th of July, entered judgment for ninety-six dollars costs of the “said issue of law.”

On the 15th of August, 1853, the plaintiff's attorney served upon the defendant's attorney a notice of appeal " from the judgment entered on the 16th of July for ninety-six dollars, and striking out the demurrer of the plaintiff.The appeal was brought to a hearing at the Albany general term, in February, 1855, and, according to the affidavit upon which the motion was founded, the court “ decided adversely to the plaintif, and dismissed said appeal.

The defendant entered judgment for $115.52 costs upon the appeal. Upon the taxation of costs, the plaintiff's counsel insisted that the defendant was only entitled to the costs of a motion. The plaintiff moved for a retaxation of the costs.

CHARLES C. Nott, for plaintiff.
John K. PORTER, for defendant.

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