Demelt v. Leonard — 19 How. Pr. 182

Majority

p. 182

SUPREME COURT.

Julia Demelt agt. George H. Leonard, and others.

Headnote

Notices in actions must be signed by the attorney giving them.

Where the pretended notice given by the defendant that he would be examined aa a witness in his own behalf, (when such notice was required,) was not signed by the defendant or his attorney, but was allowed by the referee,—-jugment was reversed for the error#

Broome General Term,

May, 1860.

Present, Mason, Balcom, Campbell and Parker, Justices.

This action was brought to charge certain real estate situated in the town of Decatur, in the county of Otsego, with the support of the plaintiff, and to compel the defendants to account for the use of the same. The defendant, Leonard, answered the complaint by a general denial of the whole and every part of it. It was then referred to S. H. Grant, Esq., to take and report the evidence to the court. He took the evidence or a part of it; and then the defendant, Leonard, made a settlement with the plaintiff. Leonard subsequently*made a motion for leave to make a supplemental answer setting up the settlement— and leave was granted him to do so, on payment of costs, and on condition that he waived all prior .defences he had interposed. He accepted the terms and conditions, and interposed a supplemental answer setting up a settlement of the subject matter of the action subsequent to the service of his former answer. The issues made by the supplemental answer were referred to said Grant to hear and determine. They were tried before him in November, 1851. He afterwards found in favor of the defendant Leonard upon said issues; and judgment was entered on his finding dismissing the complaint with costs. The plaintiff appealed from the judgment to the general term of the court.

p. 183

E. E. Ferry, for plaintiff.

A. Becker, for defendant Leonard.

The defendant Leonard was examined as a witness in his own behalf before the referee. At the time the trial was had he could not testify in his own behalf without giving at least ten days previous notice of his intended examination. The paper served, which the referee held was a notice of his intended examination, was not signed by him or his attorney, and was not therefore a notice. It was only a memorandum. It should have been subscribed by his attorney, in order to constitute it a notice, A rule of this court requires notices to jie subscribed by the party or his.attorney. That notices in actions .must be signed by the attorney giving them has been determined at a general term of this court in the 7th district. (See Yorks agt. Peck, 17 How. Pr. Rep., 192 .) The referee erred in allowing Leonard to testify in his own behalf without any notice being given of his intended examination. This error entitles the plaintiff to a new trial. It is therefore unnecessary to determine whether the decision of the referee is sustained by the evidence. The judgment in the action should be reversed and a new trial granted, costs to abide the event; and either party should have leave to apply for the appointment of a new referee.

Decision accordingly.