—The deposition of George A. Wendell was properly admitted. Even if the order had in effect limited the time for taking the examination before a justice of the peace, yet as the plaintiffs, having notice of the intended examination, appeared and cross-examined the witness, although they in the first instance objected, the deposition became effectual proof in the cause.
The objections taken at folios 49 and 50 of the case (referring to the objection to the statement of the witness, that the son went to Canandaigua, and that he deposited the balance) are not well taken. The testimony was not as to what another person had said, but what he had done / and although the acts testified to might not have happened in the presence of the witness, this was not sufficient to exclude it. The only remedy was for the plaintiffs to show, on the cross-examination, that the witness had not a sufficient opportunity of knowing what he had testified ; and thus the effect of his testimony on those points would have been weakened or destroyed before the jury. But the judge could not know beforehand the means by which the witness had acquired his 'knowledge.
Where a party was examined even before the amendment of § 399 of the Code, it was proper to recall him to contradict the other party, although not on a point specified in the notice.
*427The judge correctly refused to charge, if the jury believed that the defendant authorized G. A. Wendell, as his agent, to negotiate the note in controversy, and G. A. Wendell and B. B. Wood, in reality passed it off to the plaintiffs for the claim against George, then the plaintiffs are bonarfide holders upon the ground that the usurious transaction, even if it had transpired, was revoked, and that the transaction between G. A. Wendell, B. B. Wood, and Mitchell was to be regarded as an original negotiation of the note.
If, indeed, defendant and Wood had rescinded the original transaction, the former paying back the money he had received and the latter surrendering the note, and if the note was given to the plaintiffs in payment of their claim against George A. Wendell, the taint of usury would have been removed; and it would have been valid in the hands of the plaintiffs. But the judge was not asked to say this: and if he was, he would be correct in refusing to charge to this effect; because there was nothing in the testimony to warrant the jury in taking it into consideration. Indeed, Wood expressly testified that he had purchased the claim of the plaintiffs against George A. Wendell with this note, and had received an assignment of the claim, which he still held.
The other exceptions are equally untenable.
The judgment should be affirmed with costs.
Present, Clerke, P. J., Leonard and Barnard, JJ.