Majority
p. 34SUPREME COURT. Adrian Marseilles, Plaintiff in Error, agt. Patrick Bulger, Defendant in Error.
Headnote
Under section 399 of the Code, a landlord is not a competent witness for himself in “ summary proceedings to recover the possession of land.” (2 R. S., 512.) (Sop does the amendment or reduction of section 399, made in 1860, offect this question ! Rep.)
p. 35Special Term, January, 1860. I. The landlord, in summary proceedings to recover the possession of land (2 R. S., 512, 513), is not a competent witness in his own behalf, and the justice erred in admitting him. The Code (§ 399), allowing any party to an action or proceeding, to be a witness in his own behalf, is contained in part second of that act; and by section 411 shall not affect any special statutory remedy not obtained by action. (Benjamin agt. Benjamin, 1 Seld. 383; Hyatt agt. Burr, 8 How., 110 .)
This was a certiorari to C. W. Van Voorhis, Esq., justice of the district court in the city of New York, for the 1th judicial district.
The facts were these: The defendant in error, as the plaintiff’s landlord, instituted proceedings before the justice, under article 2, chapter 8, of the 3d part of the Revised Statutes, entitled *• Summary proceedings to recover the possession of land in other cases,” to remove the plaintiff in error, as his tenant, from certain premises in the city of New York, upon the ground of the nonpayment of rent. The tenant filed with the justice an affidavit denying the facts on which the proceedings had been instituted; the matter was tried before the justice, without a jury. On the trial the landlord offered himself as a witness in his own behalf; the tenant objected, that the landlord was not a competent witness for himself; that the law does not allow a party to be a witness in his own favor in a proceeding like this; the justice overruled the objection, and the tenant excepted; the landlord was sworn, and on his testimony the justice rendered judgment against the tenant, whereupon the tenant removed the case into this court by certiorari.
Nelson Smith, for plaintiff in error.
p. 36II. Section 399, as originally passed, did not allow a party to be a witness in his own favor. It was amended to that effect (Laws of 1857); but that amendment is to be taken as a part of the original act, as if they were one and the same act; and the first must be read as containing in itself, in words, the amendment supplied by the latter. (Attorney-General agt. Paugett, 2 Price, 381.) In such case the unrepealed provisions of the first statute necessarily limit and control the amendment.
James C. Hays, for defendant in error.
gave judgment for the tenant, reversing the judgment of the justice, with costs.