Bennett v. Austin
New York Supreme Court
MotioN by defendant for a new trial, under section 268 of the Code. This was an action to have a deed, given by plaintiffs and Truman G. Avery and wife to Stephen G. Austin, dated January 28, 1870, on property, in Buffalo, declared a mortgage, and for redemption. It was tried at the Erie Special Term, in June, 1874, and the relief asked for granted. The defendant moves for a new trial under section .268 of the Code.
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MotioN by defendant for a new trial, under section 268 of the Code. This was an action to have a deed, given by plaintiffs and Truman G. Avery and wife to Stephen G. Austin, dated January 28, 1870, on property, in Buffalo, declared a mortgage, and for redemption. It was tried at the Erie Special Term, in June, 1874, and the relief asked for granted. The defendant moves for a new trial under section .268 of the Code. On and prior to January 28th, 1870, David S. Bennett and Truman G. Avery were partners, as commission merchants, at Buffalo, under the name of Bennett & Avery. They then occupied…
1Opinion of the Court
MerwtN, J. :
The first question to be determined is, whether or not Mr. Bennett could testify on behalf of his co-plaintiff, Mrs. Bennett, as against the defendant, Mrs. Austin, who is the devisee of Stephen G. Austin, deceased, as to any personal transaction or communication between such witness and Mr. Austin. Section 399 of the Code provides that no party to any action or proceeding shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination deceased, against the devisee of such deceased person. Mr.…
2Cases cited4 opinions
- Williams v. . FitchNew York Court of Appeals · 1859
- Card v. . CardNew York Court of Appeals · 1868
- Lamb v. Camden & Amboy Railroad & Transportation Co.New York Court of Common Pleas · 1869
- Genet v. LawyerNew York Supreme Court · 1871