Chamberlain v. Hamilton

New York Supreme Court

Chamberlain v. Hamilton

18 Barb. 324, 1854 N.Y. App. Div. LEXIS 43

DecidedSeptember 4, 1854

StatusPublished

This text of 18 Barb. 324 (Chamberlain v. Hamilton) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chamberlain v. Hamilton, 18 Barb. 324, 1854 N.Y. App. Div. LEXIS 43 (N.Y. Super. Ct. 1854).

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Opinion

By the Court, Welles, J.

The 395th section of the code provides as follows : “ A party examined by an adverse party, as in this chapter provided, may be examined on his own behalf, in respect to any matter pertinent to the issue. But if he testify to any new matter, not responsive to the inquiries put to him by the adverse party, or necessary to explain or qualify his answers thereto, or discharge when his answers would charge himself, such adverse party may offer himself as a witness on his own behalf, in respect to such new matter, and shall be so received.”

The simple point here is, whether, when the defendant testified in his own behalf, that the reason why he did not make the snaths for the plaintiff was that he was under no obligations to make any; that he had made no agreement with the plaintiff and that he was working merely as an experiment, &c.; he testified to new matter not responsive to the inquiries put to him by the adverse partyi or necessary to explain or qualify his answers thereto, or discharge when his answers would charge himself.

When the defendant testified that he had not made the snaths, he proved a breach of the agreement as it was alleged by the plaintiff to have been made. Assuming the agreement to have been as the plaintiff claimed, and as he contended he had proved it, the answer of the defendant went directly to charge himself, and it seems to me that when he stated the reason why he had not made them, he did no more than to discharge himself in áo far as his previous testimony went to charge him, and no more than the section referred to intended he might do without incurring the hazard of confronting the plaintiff as a witness in his. own behalf. - The referee, therefore, decided correctly in excluding the plaintiff as a witness.

The judgment of the special term should be affirmed.

Johnson, T. R. Strong and Welles, Justices.]

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By the Court, Welles, J.

The 395th section of the code provides as follows : “ A party examined by an adverse party, as in this chapter provided, may be examined on his own behalf, in respect to any matter pertinent to the issue. But if he testify to any new matter, not responsive to the inquiries put to him by the adverse party, or necessary to explain or qualify his answers thereto, or discharge when his answers would charge himself, such adverse party may offer himself as a witness on his own behalf, in respect to such new matter, and shall be so received.”

The simple point here is, whether, when the defendant testified in his own behalf, that the reason why he did not make the snaths for the plaintiff was that he was under no obligations to make any; that he had made no agreement with the plaintiff and that he was working merely as an experiment, &c.; he testified to new matter not responsive to the inquiries put to him by the adverse partyi or necessary to explain or qualify his answers thereto, or discharge when his answers would charge himself.

When the defendant testified that he had not made the snaths, he proved a breach of the agreement as it was alleged by the plaintiff to have been made. Assuming the agreement to have been as the plaintiff claimed, and as he contended he had proved it, the answer of the defendant went directly to charge himself, and it seems to me that when he stated the reason why he had not made them, he did no more than to discharge himself in áo far as his previous testimony went to charge him, and no more than the section referred to intended he might do without incurring the hazard of confronting the plaintiff as a witness in his. own behalf. - The referee, therefore, decided correctly in excluding the plaintiff as a witness.

The judgment of the special term should be affirmed.

Johnson, T. R. Strong and Welles, Justices.]

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Bluebook (online)

18 Barb. 324, 1854 N.Y. App. Div. LEXIS 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chamberlain-v-hamilton-nysupct-1854.