Phenix v. Baldwin
New York Supreme Court
In this case, a motion was made on behalf of the defendant for a new trial, on the ground of surprise. The action was assumpsit to recover the value of a quantity of lumber sold. The defendant had sued out a commission to Pennsylvania, under which the testimony of one Matthews had been taken, which commission had been returned with the testimony of Matthews annexed.
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In this case, a motion was made on behalf of the defendant for a new trial, on the ground of surprise. The action was assumpsit to recover the value of a quantity of lumber sold. The defendant had sued out a commission to Pennsylvania, under which the testimony of one Matthews had been taken, which commission had been returned with the testimony of Matthews annexed. On the trial of the cause, the plaintiff, after calling two witnesses to prove the sale of the timber, and admissions of indebtedness by defendant, rested. The defendant then offered in evidence the deposition of Matthews taken…
1Opinion of the Court
UTICA,
July, 1835.
A defendant who has procured the testimony of a witness residing abroad to he taken under a commission, is not bound on the trial of the cause, upon the requisition of the plaintiff, to call the witness who is then in court, and examine him viva voce, but may read his deposition as taken under the commission; the plaintiff however may have the witness sworn and exam» ined, although he omitted to join in the commission.
And where in such case the defendant alleged that the testimony of the witness on the trial was materially variant from his deposition, and asked for a new…
2Cited by9 opinions
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- Hammock v. Wm. J.Supreme Court of Georgia · 1849
- Overton v. StateSupreme Court of Arkansas · 1892
- Bradley v. GeiselmanIllinois Supreme Court · 1856
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