Carrington v. Hutson

35 N.Y. Sup. Ct. 371

Opinion

By the Coukt :

It was decided in Courtney v. Baker (3 Den., 27,) that in an action for the statutory penalty against a witness who had failed to attend, the plaintiff must show that the witness was material and that damages resulted from his non-attendance. That is, a sound construction of the law. There is no reason why a plaintiff should recover this penalty, unless he was aggrieved; that is, unless the absence of the witness caused some injury. There is nothing in the Code Civil Procedure (§ 853) to change this rule of law.

The judgment should be affirmed, with costs. .

Present — Learned, P. J., Bookes and Westbrook, JJ.

Judgment and order affirmed, with costs.