Comins v. Hetfield

Headnote

Testimony of party to action — not stricken out because of death of his adrersa/ry pending the suit.

Appeal by defendant from a judgment in favor of the plaintiff, entered on the report of a referee. The plaintiff was sworn before the referee, and testified to certain material facts. Before his examination was concluded the reference was adjourned, and thereafter Isaac B. Culver, defendant in the original action, died. Defendant’s counsel subsequently moved to strike out the evidence given by the plaintiff, on the ground that it related to a personal transaction with the deceased. This motion was denied. On appeal, the court at General Term said: ee The evidence of the plaintiff was properly taken by the referee and was wholly unobjectionable at the time it was taken. The subsequent death of defendant Culver would not justify the rejection of plaintiff’s evidence so taken

before Culver’s death. It is not a case where the right of cross-examination of a witness has been lost by his misconduct, or by the fault of the party calling him. (Forrest v. Hissam, 7 Ilill, 463.) The exception to the refusal to strike out such testimony was not well taken.”