Myers v. McCarthy

By the Court. Vanderpoel, J. The 349th section of the Code of Procedure provides, that “ A party examined by an adverse party may be examined on his own behalf in respect to any matter pertinent to the issue. But if he testifies to any new matter, not responsive to the inquiries put to him by the adverse party, such adverse party may offer himself as a witness in his own behalf.” In this case, the question whether Van Hovenburgh, or his clerk, was authorized to take the note of the defendant below, was a material one. The defendant, under the above section of the code, called the plaintiff below, and asked him whether he ever went back to Van Hovenburgh’s office to ask him for the note, after it had been taken by Sharrat. To this, he answered in the negative, and then, in reply to an interrogatory propounded to him by the court, he further stated, that he never consented to take the note in question. This answer, not called forth by the defendant, went to a vital point in this cause. In making it, the plaintiff below went beyond the point to which he was examined by his adversary, and it was therefore emphatically a case where such adversary might offer himself as a witness on his own behalf, in respect to the new matter. It was no answer to the defendants request to be sworn in respect to the new matter, that it was called forth by a question of the court. It was nevertheless evidence in the cause, and such as the defendant below should have had the privilege of answering by his own testimony, if he could. The justice was clearly wrong in rejecting the defendant; but as the plaintiff below had no agency in inducing the error, and it was the act of the justice alone, we do not think the plaintiff ought to be mulcted in costs. The judgment must therefore be reversed, without costs. [402] We forbear to express any opinion upon the point whether the plaintiff below did, in point of fact, authorize the note to be taken. We reverse the judgment exclusively on the ground that the justice erred in refusing to let the defendant testify in respect to matter which the justice himself improperly called forth. Judgment reversed.