Legal Opinion

Billings v. Baker

New York Supreme Court

Decided January 15, 1858Published

Motion to set aside an order made by the sole referee, striking -out the name of a party defendant on the trial. The action was "brought by one Amy Billings, a married woman, by her next friend, against Claudius Baker, Perry P. Billings, and others. The object of the action was a partition of real ^estate. The defendant Billings was the husband of the plaintiff. The action was referred, and on the trial, the plaintiff was offered as a witness in her own behalf.

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Motion to set aside an order made by the sole referee, striking -out the name of a party defendant on the trial. The action was "brought by one Amy Billings, a married woman, by her next friend, against Claudius Baker, Perry P. Billings, and others. The object of the action was a partition of real ^estate. The defendant Billings was the husband of the plaintiff. The action was referred, and on the trial, the plaintiff was offered as a witness in her own behalf. An objection was raised: to her competency as a witness, on the ground that her husband was a party to the action. The referee…

1Opinion of the CourtPotter, J.

This motion might perhaps be regarded as somewhat technical, under the liberal system of practice introduced’ by the Code, if it did not involve the question of power. As a question of power, then, it must be- examined with caution. That the Supreme Court is now vested with the power which was exercised in this case by the referee, is beyond question. It is conferred not only by the' constitution, which gives them general jurisdiction in law and equity, but also by express language of the Code of Procedure (§' 173):—“ The court may, before or after judgment, in furtherance of justice, and on…

2Cases cited2 opinions

  1. Willink & Willink v. Renwick & RenwickNew York Supreme Court · 1840
  2. Gates v. WardNew York Supreme Court · 1854

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