Crumbie v. Manhattan Railway Co. — 64 N.Y. St. Rep. 96

Majority

p. 96

Ann E. Crumbie, Resp’t, v. Manhattan Railway Company, App’lt.

(Supreme Court, General Term, First Department,

Filed December 14, 1894.)

Headnote

1. Reverence—To take testimony.

A reference to take testimony to be used on the trial of an equity case, cannot be granted.

2. Same—Waiver.

The party does not waive the statutory requisites by an appearence before the referee upon the taking of the testimony.

Appeal from a judgment in favor of plaintiff.

A. O. Townsend, for app’lt; H. G. Atwater, for resp’t.

It now seems to be well settled that the court should not make such an order of reference as was made in this •case. Upon the trial the defendants had the right to take the objection that the evidence sought to be introduced had not been taken according to law. Suppose a party participates in a de bene esse examination, unless the evidence is certified to the court according to law such evidence cannot be used upon a trial. The party does not waive these statutory requisites by appearance upon the taking of the testimony. So, in the case at bar, when it was sought to read upon the trial the evidence which had been taken in a manner not provided by law, the appellant had a right to object to its introduction, and the overruling of such objection was error.

The judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.