Kirk v. Hodgson

2 Johns. Ch. 550, 1817 N.Y. LEXIS 212, 1817 N.Y. Misc. LEXIS 57

Opinion

The Chancellor

[ * 551 ]

said, he thought the mere fact of filing a replication was not sufficient to prevent the examination of a co-defendant, who appeared by the pleadings not to be interested in the cause. The dictum in Maddock was without reference to any authority to support it. If the filing a replication, was, of itself, decisive proof of interest, it would be in the power of the plaintiff to deprive a defendant of any witness. The rule to examine these *co-defendants must be granted, subject to all just exceptions; and if it should appear on the hearing that the co-defendants were interested, their depositions would, of course, be suppressed.

Rule accordingly.