Jackson ex dem. Hogarth v. Nelson

6 Cow. 248

• Court: New York Supreme Court
• Decided: August 15, 1826
• Status: Published

Opinion

Curia, per

Sutherland, J.

(after stating the facts.) In Brant v. Dyckman, the defendant denied that he was in possession when the action was commenced ; and called one Vredenhergh, to prove that he, Vredenbergh, at the commencement of the suit, was, and then still continued to be, in possession ; and not the defendant. He was excluded by the judge, and the supreme court held him incompetent. They say, “If he was in possession, he had an immediate interest to protect that possession and prevent a recovery.” “ Whether this be considered,” they continue, “an interest in the event of the suit, or in the question, between the parties merely, it is one of those cases in which the reason and policy of the law-ought to exclude a witness. His interest in the question of possession, is almost the same as that of the defendant himself.”

Admitting this decision to be sound, I think the present case is distinguishable from it. The witness was there called to support his own actual possession. A verdict against the defendant, would have resulted in a judgment and execution, by which the witness would inevitably have been turned out of possession. But in this case, the possession of the witness is constructive merely, not actual. The effect of a recovery on the part of the plaintiff cannot be, to turn him out of actual possession ; nor can the verdict be evidence for or against him, in any other suit. It is an interest in the question merely, and not in the event of the suit. (3 John. Cas. 234. 4 John. Rep. 232. 5 id. 158. 10 id. 21.)

Besides, the witness was sworn on his voire dire, and testified that he did not reside on the premises in question, and had no interest in them that he knew of. There may have been a partition.

Motion for a new trial denied.