Barry v. Galvin
New York Supreme Court
This was an action upon a promissory note, signed by • defendants, the signature oí Lawrence being by a mark, and was tried at the June circuit for Cortland county in 1866. The defendants answered separately; John admitting the execution of the note, and setting up a counter-claim and Lawrence denying his execution of the note, and setting up counter-claims.
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This was an action upon a promissory note, signed by • defendants, the signature oí Lawrence being by a mark, and was tried at the June circuit for Cortland county in 1866. The defendants answered separately; John admitting the execution of the note, and setting up a counter-claim and Lawrence denying his execution of the note, and setting up counter-claims. After issue was joined, the defendant, John, was examined as a witness at the instance of the plaintiff un- ' der § 391 of the Code, and testified among other things in answer to plaintiff’s inquiry that he executed the note for himself;…
1Opinion of the CourtBy the court. Boardman, J.
Prior to the act of 1847 (2 Laws of 1847, 630),' the only mode of securing an adverse party’s evidence was in equity by bill for discovery.
Upon. such bill being filed, and answer, put in making the required discovery, the defendant was entitled to use such answer in his own behalf, if the plaintiff refused to offer it as adverse to his case. There are certain exceptions to the right of the defendant to use such answer, but subject to such exceptions the right of the defendant to use his own evidence given in answer to such bill of discovery was absolute. (3d. Green. Fiv., §§ 284, 289, 290 ;…
2Cases cited4 opinions
- Randon v. TobySupreme Court of the United States · 1851
- Gordon v. Grand Street & Newtown Rail RoadNew York Supreme Court · 1863
- Dubois v. . BakerNew York Court of Appeals · 1864
- Clarke v. SmithNew York Supreme Court · 1866
3Cited by1 opinion
- Stilwell v. KellyThe Superior Court of New York City · 1874