Rippowam Co. v. Strong

2 Hilt. 52

• Court: New York Court of Common Pleas
• Decided: June 15, 1858
• Status: Published

Opinion

By the Court, Hilton, J.—The

order made by this court at general term upon the former appeal, in effect reversed the judgment entered upon the referee’s report, and sent the case back for a new trial.

No provision was made whereby either party was permitted to use, upon such new trial, any of the testimony previously taken, and consequently the case stood in the same position, in. every respect, as if no trial had taken place.

It appears that, on the new trial before the referee, he permitted the plaintiff to read in evidence all the former testimony in the case, notwithstanding the defendant objected. In this the referee erred. The defendant was entitled to have the witnesses examined orally, and in the usual manner; and, the referee’s-report being founded upon testimony improperly admitted in evidence, the j udgment entered thereon must, for that reason, be reversed.

Judgment reversed and new trial ordered, costs to abide the event.