Morris v. Morris & Cummings Dredging Co.

38 F. 776, 1889 U.S. App. LEXIS 2203

Opinion

Lacombe, J.

It appears by the answer of defendant William Collins that subsequent to the beginning of this suit, and on December 22,1888, at the city of New York, he admitted in the hearing of one I. T. Brown that the buckets made and used by his co-defendant were made and used by his consent. The evidence which plaintiff moves to strike out only shows that Collins, some time in February, 1889, admitted in the hearing of one Dudley W. Bain that the buckets so made and used were made and used by his consent. In the present state of the case one admission by the defendant Collins is as good as fifty. The evidence, therefore, is cumulative, and should be stricken out. It may be urged that the evidence is not cumulative, oil the ground that the answer of Collins cannot be used as evidence in favor of his co-defendant. Whether or not it may be so used need not now be decided. The same arguments which might be presented against the use of the answer would apply with equal force to the evidence submitted; both are merely the admissions of a third party not subjected to cross-examination.