Genet v. Lawyer

By the Court, Johnson, J.

The testimony offered by the defendants, of the witness 8chram, was properly rejected. . He was the maker of the note on which the action was brought, and a party defendant in the action. The note was given to the plaintiff’s testator, and the offer was to prove, by this witness, that the note was, at the time the same was mide, infected with usury; and also that the time of payment had been extended by an agreement between the testator, in his lifetime, and the witness. This was clearly inadmissible, as between the defendants and the plaintiff, who was prosecuting and carrying on the action in her representative capacity. It makes no difference that the action was commenced by the testator in his lifetime, and at the time of the trial was continued in the name of the present plaintiff, only. The testimony was offered against'the plaintiff as executrix, and the statute is explicit, that “ no party to an action or proceeding, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person' at the time of such examination deceased,” &c., “against the executor,” &c. .The witness was clearly a party to the action. Th'e action was commenced against him and the other two defendants by the service of a summons in which all were named, and which was served upon all. The „fact that the witness did not appear nor put in an answer, but suffered default, did not operate to sever the action, or to discontinue it as to him. • He was still a party. Hor did the release executed to the witness by the other defendants, affect the question.

The defendants could not, by any act of their own, change the statute, or take away the rights of the plaintiff" under it. The defendants were properly joined in the action, as parties defendants, under section 120 of the Code, and there had been no several judgment against the party offered as a witness; nor was it a cáse in which the action could have been divided into several actions, under section 172 of the Code. Hnder section 274 of the Code, the court is authorized, in its discretion,; to render judgment against one or more of several defendants, leaving the action to proceed against the other defendants, whenever a several judgment may be proper. But it is all in the same action, and the parties to such action, remain unchanged, even in that case.

The defendants’ counsel seem to rely upon section 2 of chapter 211 of the act of 1835, amending the act of 1832, which provided that where default was obtained against part of the defendants, the plaintiffs might proceed against the other parties, in the same manner as if the suit had been commenced against such other parties, and the action should be thereby severed. But this statute has clearly been superseded and abrogated by the Code. It is inconsistent with the provisions of the Code, and therefore repealed by section 468.

The Code has provided in what eases, and in what manner, actions may be severed. The witness having been served with the process, was a party to the action, whether be appeared and answered, or not; and being a party, was incompetent.

The other question is, whether the defendants should have been allowed to prove the entries made by the notary in his book, without producing the book. The notary had testified, from a memorandum made by him on the note, that it was protested July 16, 1864, which was in due time.- The defendants offered to prove by a witness who had some time previously seen the book, that the entry therein by the same notary was a protest on the 15th of July, instead of the 16th. The book was shown to have been in the possession of a third person when thus seen by the witness. It was not shown to -have been lost, or kept out of the way. The book was the best evidence of the entries therein; and if the entries were competent for any purpose, the book should have been produced, or shown to have been lost, before parol evidence of the entries was allowable,

[Fourth Department, General Term, at Syracuse, November 13, 1871.

" The motion for a new trial was properly denied at special term, and the order must be affirmed.

Mullin, P. J., having tried the cause, and made the order appealed from, did not sit in the case.

Johnson and Talcott, Justices.]