The first question which I propose to consider is, the exception taken to the rejection of Philip Peck, jr., as a witness for the plaintiff. The 390th sec-' tion of the Code provides, that “ a party to the action may be examined as a witness at the instance of the adverse party, or any one of several adverse parties, and for that purpose may be compelled in the same manner, and subject to the same *398rules of examination as any otner witness, to testify, either at the trial, or conditionally, or upon commission.”
It is claimed and insisted, however, by the defendant, Henry Peck, that the fact that Philip Peck, jr., is made a party defendant, cannot render him a competent witness as between him and the plaintiff on the issue in- this action, if he would be incompetent as a witness for the plaintiff were he not a party to the suit. In this he is most clearly right; for the principle is undoubtedly sound, that a person incompetent to testify for a party, cannot be rendered competent by being made a party to the record. (Pillow agt. Bushnell, 5 Barb. R. 156.)
The question recurs, then, whether Philip Peck, jr., would be a competent witness for the plaintiff on this issue joined between the plaintiff and the defendant, Henry Peck, were he not a party defendant in the action 1 The 398th section of the Code declares that no person offered as a witness shall be excluded by reason of his interest in the event of the action; but section 399 declares, 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. This provision, that it shall not apply to a party to the action, does not mean to embrace that class of cases embraced by section 390, which gives the plaintiff the right to call either of the defendants, or either of the defendants to call either of the plaintiffs, and consequently would not deprive the plaintiff of the right to call Philip Peck, jr., because he is a defendant in the suit.
The whole question, then, depends upon the fact whether Philip Peck, jr., is the person for whose immediate benefit this-action is prosecuted 1 If so, he is not a competent witness; if not, he is a competent witness for the plaintiff, and the court erred in excluding him.
This question came before the superior court of the city of New-York, in the case of Davies fy Rockwell agt. Cram and others, (4 Sanf. S. C. R. 355,) and that court held, in just such a case, that the insolvent debtor who has assigned his property to assignees for the payment of his debts, is a competent witness in an action brought or defended by his assignees in rela*399tion to his estate—holding that such suit is not prosecuted or defended for his immediate benefit', within the meaning of the Code. To the same effect, precisely, is the case of Allen mid others agt. The Franklin Fire Insurance Company, (9 How. P. R. 501,) decided by the full bench of the third district.
. I am aware that this question was decided otherwise in the case of Fitch agt. Bates, (11 Barb. Rep. 471,) by the general term of the fourth district. I have examined these cases with some care, and have come to the conclusion that the question is rightly decided by the superior court, and the bench of the third district. The plaintiff sues as trustee, and the fund of the litigation goes first to the creditors of Philip Peck, jr.; and none of it will ever come to the hands of Peck, unless there is a surplus after paying his creditors. It is true, Peck is interested to have the plaintiff recover, but that does not disqualify him as a witness, unless the suit is prosecuted for his immediate benefit within the meaning of the Code, and which I do not think it is. 1
As to the question whether the bank judgment was paid or not, I do not see what difference it can make with Philip Peck, jr., or the plaintiff. The time for redemption had gone by as to Philip Peck, jr.; and whether the sheriff conveyed to Lovina Clarke, the purchaser of Tiffany, or the Messrs. Titus, was wholly immaterial to him. The Messrs. Titus certainly had a right to redeem on their judgment of Mrs. Clarke; and whether they redeemed directly of her or of Tiffany, does not concern the plaintiff or Philip Peck, jr. If the bank judgment was in fact paid, the Messrs. Titus paid $184.30 more to redeem on their judgment than they were required to pay; but it is not perceived how that can invalidate their redemption. As regards Philip Peck, jr., or the plaintiff as his assignee, these intermediate redemptions by his creditors are 11 res inter alios acta.” (1 W. R. 46.)
The judgment should be reversed, and a new trial granted: costs to abide the event, for the exclusion of Philip Peck, jr., as a witness for the plaintiff.