Demelt v. Leonard

19 How. Pr. 182

Opinion

By the court—Balcom, Justice.

The defendant Leonard was examined as a witness in his own behalf before the referee. At the time the trial was had he could not testify in his own behalf without giving at least ten days previous notice of his intended examination. The paper served, which the referee held was a notice of his intended examination, was not signed by him or his attorney, and was not therefore a notice. It was only a memorandum. It should have been subscribed by his attorney, in order to constitute it a notice, A rule of this court requires notices to jie subscribed by the party or his.attorney. That notices in actions .must be signed by the attorney giving them has been determined at a general term of this court in the 7th district. (See Yorks agt. Peck, 17 How. Pr. Rep., 192.) The referee erred in allowing Leonard to testify in his own behalf without any notice being given of his intended examination. This error entitles the plaintiff to a new trial. It is therefore unnecessary to determine whether the decision of the referee is sustained by the evidence. The judgment in the action should be reversed and a new trial granted, costs to abide the event; and either party should have leave to apply for the appointment of a new referee.

Decision accordingly.