McKinley v. Williamson

Scott, Judge, delivered the opinion of the court. The point made in this cause is, whether an assignor of a chose in action can be a witness for his assignee in a suit by the assignee, under the 25th article of the present practice act. The first section of the article referred to enacts “ that no person offered as a witness shall be excluded by reason of his interest in the event of the action.” The second section prescribes that “ the last section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended, nor to any assignor of a thing in action, assigned for the purpose of making him a witness.” The prior clauses of this section show the class of assignors that was designed to be rendered incompetent as witnesses. Those clauses exclude a party to the suit, and those for whose immediate use the suit is prosecuted or defended. Having excluded a party, it was reasonable that the prohibition should not be evaded by merely substituting another plaintiff, the party substituting such plaintiff still retaining his interest in the suit. At common law an assignor, without recourse against him, was a competent witness for his assignee. The witness, in this case, was nothing more, for she swears that she will be neither a gainer nor loser by the event of the suit. As the statute was made to relax the rule at common law, excluding witnesses on the score of interest, it would be against its spirit to give it a construction that would exclude witnesses not excluded by the common law. If, in a determination not to be outdone, the owner of a chose in action, growing out of a contract, assigns it effectually in order that he may be a witness for its recovery, if he has freed himself from all interest in the event of the controversy, he may be a witness for his assignee. This seems to be the con [67] Struction of tbe statute in New York, where it is held that the assignor of a chose in action, which is assigned for the purpose of making him a witness, is not rendered incompetent to testify, if he is not interested in the event of the suit. (Hamilton & Dansville P. R. Co., v. Rice, 7 Barb. 155.) The judgment is reversed, and the cause remanded; the other judges concur.