Lary v. Pettit

66 N.Y.S. 834, 55 A.D. 631

Opinion

SMITH, J.

Upon the trial of this action the plaintiff proved his common-law judgment and certain declarations of Isaac Pettit. He afterwards introduced in evidence a deposition of Isaac Pettit in supplementary proceedings upon the Boyd judgment. After testifying to the value of the property, he rested. Up to this point plaintiff clearly had not made out a cause of action against the defendant Myrtle Pettit. The declarations of Isaac Pettit, including his deposition in supplementary proceedings, were admissible only against himself, and were so limited by the court. No fraud, therefore, was proven as against the defendant Myrtle Pettit sufficient to authorize this judgment. Thereafter the defendants were both sworn on their own behalf. But a careful reading of their evidence fails to disclose as against Myrtle Pettit a case of fraud. In truth, the only evidence in the case, whether producd upon the part of the plaintiff or the defendant, from which an inference of fraud can be drawn, consists in declarations of Isaac Pettit which are not competent as evidence of fraud against Myrtle Pettit. The judgment should, therefore, be reversed, and a new trial granted, with costs to the appellant to abide the event.

Judgment reversed on the law and the facts, and a new trial granted, with costs to the appellant to abide the event. All concur, except KELLOGG, J., who dissents.