Woodruff, J.-
The views expressed by this court in Ward v. Ingraham, (1 E. D. Smith, 538), seem to me conclusive in the present case. Section 399 of the Code of Procedure, provides that when an assignor of a thing in action, &c., is examined as a witness on behalf of any person deriving title through or from him, the adverse party may offer himself as a witness to the same matter, and shall be so received.
This action is prosecuted by the plaintiff as the assignee of Thomas Law, to recover money due from the defendant for a [151]*151horse alleged to have been sold by Law to the defendant. — -On the trial the plaintiff examined Law, his assignor, and proved by him the sale and delivery of the horse to the defendant, the price thereof and the assignment to the plaintiff. The defendant then offered himself as a witness on his own behalf, and to the three facts above mentioned he was plainly competent: — • In relation to the alleged sale and delivery, the price, and the assignment, he might testify, for to these matters the assignor had testified. But he was also offered to prove, and notwithstanding the plaintiff’s objection, was permitted to testify, that he had paid for the horse the foil price: — when such payment was made, he did not state. This was not the matter respecting which the assignor had been examined, but wras new matter, matter entirely consistent with the truth of all that the assignor had testified, and tending, not to controvert the case made by the plaintiff’s witness, but to establish a defence in avoidance of the plaintiff’s case. The object of the section of the Code referred to, was to place the parties, in respect to any fact which might be within the knowledge of the parties to the transaction only, so far upon equal ground that if the plaintiff relied upon the assignor, as to any fact in his case, the defendant might, as to such fact, controvert the evidence by his own oath. Thus, if the plaintiff relied upon the assignor to prove a sale, the defendant might testify to the matter of the sale, and so as to delivery, price, or any other fact on which his claim depends. I do not think that practically the rule operates equally ; and if the legislature had gone further and applied to this examination the provisions of section 395, so that when the assignor was examined the defendant might testify to discharge himself of any liability resulting from the facts testified to by the assignor, it would seem to have made the rule more equitable, but such is not the meaning of section 399. Where a sale is proved, proof of payment is not the “ same,” but new matter.
The case of Gardiner v. Clark (17 Barb. S. C. R. 538) is in conflict with these views; and I exceedingly regret, that on a subject of so great importance, there should not be uniformity of decision. But with a disposition to regard the opinion of the Supreme Court in that case with great respect, I have not [152]*152been able to bring my mind to the conclusion, that our views of the construction of the Code in this particular are erroneous. To give full effect to the decision referred to, is in substance to strike out of the section the words “ to the same matter for according to the opinion of Mr. Justice Bacon, whenever an assignor is called to testify to facts which charge the defendant with a liability, the defendant may testify to any other facts whatever, occurring at the same, or at any other time, which will operate either to controvert those facts, or avoid their legal effect: i. e., he may deny what the assignor testifies, or may show facts inconsistent with his evidence; or may avoid the liability cast upon him by testifying to independent matter ; as a release, infancy, payment, or statute of limitations, and the like. That is to say, the Supreme Court construes the section as if it meant, that when the assignor is called to establish a liability, the defendant may testify to any defence, — “ the same matter” in this view, being, not the facts to which the assignor testifies, but the cause of action his evidence tends to establish, and every fact which will tend to defeat it. In my opinion, the legislature have used the language in a more restricted sense, and with the same distinctions with which these terms and their opposite are used in pleading. Thus, section 147, refers to matters appearing in the complaint — section 149, permits an answer which shall controvert the allegations in the complaint, or “ a statement of netv matter constituting a defence, or counter claim.” Formerly, section 153, allowed a reply whenever the answer contained new matter. {Code of 1849). Now, a reply is allowed when the new matter constitutes a counter claim. Section 154, again speaks of “ new matter constituting a defence,” &c. Section 165, recognizes the distinction between the “ matter charged” by the plaintiff, and matter in mitigation, or justification, or avoidance; and section 168, again recognizes the same distinction, and shows that in the Code, the term new matter, has the same meaning that it had before the Code. If the terms “ the same matter,” and “ neV matter” have, when applied to pleading, the same signification they have had heretofore, it seems to me clear, that when applied to evidence to be given under the pleadings, they must have the same signification. A party must in his [153]*153proof, be confined to bis allegations. Suppose the complaint avers a sale and delivery, and the answer contains two defences, the one a general denial of the facts charged, and the other a counter claim. Is there any doubt that the latter defence is to be deemed new matter in every sense, both for the purposes of pleading and proof? If so, and the assignor testifies to the sale, can the defendant be received to testify to the new matter constituting a counter claim ? I think not; nor to payment, or release, or other new matter. So the rules governing the conduct of a trial, as that a plaintiff having rested his case, is not, in general, permitted after the defendant’s evidence is in, to go into matter not opened by the defendant’s evidence; and if the defendant’s evidence is confined to rebutting the very same facts or matters to which the plaintiff’s witnesses have testified, the plaintiff cannot examine further witnesses. The strikingly dissimilar language used by the legislature in sections 395 and 397, contrasted with section 399, show that they used the language of the last named section in the sense we have given it. Thus in section 395, it is provided, that “a party examined by the adverse party, may testify on his own behalf in respect to any matter pertinent to the issue. But if he testify to any new matter not responsive to inquiries put to him or necessary to explain or qualify his answers or discharge him when his answers would charge himself, such adverse party may offer himself as a witness to such new
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Woodruff, J.-
The views expressed by this court in Ward v. Ingraham, (1 E. D. Smith, 538), seem to me conclusive in the present case. Section 399 of the Code of Procedure, provides that when an assignor of a thing in action, &c., is examined as a witness on behalf of any person deriving title through or from him, the adverse party may offer himself as a witness to the same matter, and shall be so received.
This action is prosecuted by the plaintiff as the assignee of Thomas Law, to recover money due from the defendant for a [151]*151horse alleged to have been sold by Law to the defendant. — -On the trial the plaintiff examined Law, his assignor, and proved by him the sale and delivery of the horse to the defendant, the price thereof and the assignment to the plaintiff. The defendant then offered himself as a witness on his own behalf, and to the three facts above mentioned he was plainly competent: — • In relation to the alleged sale and delivery, the price, and the assignment, he might testify, for to these matters the assignor had testified. But he was also offered to prove, and notwithstanding the plaintiff’s objection, was permitted to testify, that he had paid for the horse the foil price: — when such payment was made, he did not state. This was not the matter respecting which the assignor had been examined, but wras new matter, matter entirely consistent with the truth of all that the assignor had testified, and tending, not to controvert the case made by the plaintiff’s witness, but to establish a defence in avoidance of the plaintiff’s case. The object of the section of the Code referred to, was to place the parties, in respect to any fact which might be within the knowledge of the parties to the transaction only, so far upon equal ground that if the plaintiff relied upon the assignor, as to any fact in his case, the defendant might, as to such fact, controvert the evidence by his own oath. Thus, if the plaintiff relied upon the assignor to prove a sale, the defendant might testify to the matter of the sale, and so as to delivery, price, or any other fact on which his claim depends. I do not think that practically the rule operates equally ; and if the legislature had gone further and applied to this examination the provisions of section 395, so that when the assignor was examined the defendant might testify to discharge himself of any liability resulting from the facts testified to by the assignor, it would seem to have made the rule more equitable, but such is not the meaning of section 399. Where a sale is proved, proof of payment is not the “ same,” but new matter.
The case of Gardiner v. Clark (17 Barb. S. C. R. 538) is in conflict with these views; and I exceedingly regret, that on a subject of so great importance, there should not be uniformity of decision. But with a disposition to regard the opinion of the Supreme Court in that case with great respect, I have not [152]*152been able to bring my mind to the conclusion, that our views of the construction of the Code in this particular are erroneous. To give full effect to the decision referred to, is in substance to strike out of the section the words “ to the same matter for according to the opinion of Mr. Justice Bacon, whenever an assignor is called to testify to facts which charge the defendant with a liability, the defendant may testify to any other facts whatever, occurring at the same, or at any other time, which will operate either to controvert those facts, or avoid their legal effect: i. e., he may deny what the assignor testifies, or may show facts inconsistent with his evidence; or may avoid the liability cast upon him by testifying to independent matter ; as a release, infancy, payment, or statute of limitations, and the like. That is to say, the Supreme Court construes the section as if it meant, that when the assignor is called to establish a liability, the defendant may testify to any defence, — “ the same matter” in this view, being, not the facts to which the assignor testifies, but the cause of action his evidence tends to establish, and every fact which will tend to defeat it. In my opinion, the legislature have used the language in a more restricted sense, and with the same distinctions with which these terms and their opposite are used in pleading. Thus, section 147, refers to matters appearing in the complaint — section 149, permits an answer which shall controvert the allegations in the complaint, or “ a statement of netv matter constituting a defence, or counter claim.” Formerly, section 153, allowed a reply whenever the answer contained new matter. {Code of 1849). Now, a reply is allowed when the new matter constitutes a counter claim. Section 154, again speaks of “ new matter constituting a defence,” &c. Section 165, recognizes the distinction between the “ matter charged” by the plaintiff, and matter in mitigation, or justification, or avoidance; and section 168, again recognizes the same distinction, and shows that in the Code, the term new matter, has the same meaning that it had before the Code. If the terms “ the same matter,” and “ neV matter” have, when applied to pleading, the same signification they have had heretofore, it seems to me clear, that when applied to evidence to be given under the pleadings, they must have the same signification. A party must in his [153]*153proof, be confined to bis allegations. Suppose the complaint avers a sale and delivery, and the answer contains two defences, the one a general denial of the facts charged, and the other a counter claim. Is there any doubt that the latter defence is to be deemed new matter in every sense, both for the purposes of pleading and proof? If so, and the assignor testifies to the sale, can the defendant be received to testify to the new matter constituting a counter claim ? I think not; nor to payment, or release, or other new matter. So the rules governing the conduct of a trial, as that a plaintiff having rested his case, is not, in general, permitted after the defendant’s evidence is in, to go into matter not opened by the defendant’s evidence; and if the defendant’s evidence is confined to rebutting the very same facts or matters to which the plaintiff’s witnesses have testified, the plaintiff cannot examine further witnesses. The strikingly dissimilar language used by the legislature in sections 395 and 397, contrasted with section 399, show that they used the language of the last named section in the sense we have given it. Thus in section 395, it is provided, that “a party examined by the adverse party, may testify on his own behalf in respect to any matter pertinent to the issue. But if he testify to any new matter not responsive to inquiries put to him or necessary to explain or qualify his answers or discharge him when his answers would charge himself, such adverse party may offer himself as a witness to such new matter, and shall be received.” This shows, that the legislature in this section, had distinctly in view the distinction between the same matter elicited by the inquiries of the adverse party and new matter; and that in this example they intended expressly to provide, that a party so examined might not only give evidence touching the same matter thus inquired of, but might discharge himself when those matters would tend to charge him ; while, on the other hand, when such adverse party offers himself, he is strictly confined to the new matter testified to — and in section 397, the legislature provides that when a co-plaintiff or co-defendant is examined as a witness the other plaintiff or defendant may offer himself as a witness to the “ same cause of action of defence.” Showing in both these sections not only a design to admit a wider range [154]*154of examination, but also a plain recognition of the difference between an examination of the witness or party to the same matter and his examination to new matter on his own behalf. The terms of section 399, confine the examination of the defendant to the same matter testified to by the assignor and do not (as is done in § 395) intimate that he may testify to any matter which will discharge him when the evidence of the assignor would charge him, as Mr. Justice Bacon obviously holds. The legislature did not I think make use of language so widely different without intending to make a distinction, nor do I think they used the terms “ the same matters,” without intending the very same matters to which the assignor testifies, and no others; otherwise, why did they use those words at all ? If in any case this construction gives the plantiff an undue advantage we must regret it, but we cannot, I think, provide the remedy. It will rarely be true that when a sale and payment are part of the same transaction that the assignor can be so examined by the plaintiff as not, to open the door to the defendant to testify to all that took place at the time, for, if leading questions are not permitted and the assignor is examined in relation to the transaction between himself and the defendant generally, it wrould seem, even under the views I have above expressed, that the whole transaction would be the matter testified to, and that the defendant could testify to the whole. But be this as it may, I cannot find warrant for saying that he may testify to other facts, occurring at another time, forming no part of the transaction, testified to merely because the legal effect of the assignor’s evidence is to charge him with a liability, which he can only avoid by showing subsequent payment, release, or by testifying to his infancy or other matter entirely consistent with what the assignor has swrorn to, but going to new matter in avoidance.
I am of opinion that the judgment should be reversed.