Renaudet v. Crocken

1 Cai. Cas. 166, 1 Cole. & Cai. Cas. 219

• Court: New York Supreme Court
• Decided: August 15, 1803
• Status: Published

Opinion

Livingston, J.

delivered the opinion of the court. 1. The trespass having been committed in 1797, at a place then within the town of Saratoga, the plaintiff had a right to allege it was done in that town, according to the truth of the case, without regard to its subsequent division. The j ndge, therefore, properly overruled this objection.

2. It was not necessary to produce the plaintiff’s letter of attorney to Beriah Palmer. The object of Baldwin’s testimony was to show that Jacobs lived on a lot of the plaintiff’s, and acknowledged his right; that it was then regarded as the plaintiff’s, taken care of as his, and possessed under him; whether this had been done under a power or not, was immaterial. The ownership and possession of, or under him were the important facts to be established.

3. Beriah Palmer was a competent witness,

(a) notwithstanding the agreement he may have made to refund the moneys he had received from other trespassers, in case the plaintiff failed in this suit. Such moneys/ must have been received for the plaintiff; and he only, and not the witness, would be affected by such refunding.

4. If the jury believed the plaintiff’s witnesses, and w'e are to presume they did, the verdict is not against evidence and ought not to be disturbed.

Judgment for the plaintiff.

The witness was equally liable to both parties; to the plaintiff, in case of a recovery, for money received to his use; on the other hand, to the trespassers in the same form of action, if the verdict was against him. See Milward v. Hallett, 2 Caines’ Rep. 84, n.

See New York Code of Procedure, secs. 398, 399.