Merrifield v. Cooley
New York Supreme Court
Motion on behalf of the defendant Cooley, for a commission to take the testimony of defendant Bradford, of the town of Elyria, in the state of Ohio, as a witness for defendant Cooley. The affidavit upon which the motion is founded is in the usual form to obtain a commission to examine a foreign witness.
1Opinion of the Court
Welles, Justice.
The papers do not disclose the nature of the action, nor whether it is a case in which the moving defendant (Cooley) could examine his co-defendant (Bradford) as a witness upon the trial. Generally one of several defendants cannot be a witness for the others in the same suit. The code (§ 397) provides that “ a party may be examined on behalf of his co-plaintiff or a co-defendant; but the examination thus taken shall not be used on behalf of the party examined.” And whenever, in the case mentioned in sections 390 and 391, one of several plaintiffs or defendants who are joint…
2Cited by2 opinions
- Gilchrist v. W. Va. O. & O. L. Co.West Virginia Supreme Court · 1882
- Stevens v. StevensNew York Surrogate's Court · 1878