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Reports of Cases in Law and Equity in the Supreme Court of the State of New York Volume 9

Reports of Cases in Law and Equity in the Supreme Court of the State of New York Volume 9


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This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1879 Excerpt: ...before the referee, nor has it been before this court, that the defendants have been misled by tRe variance, to their prejudice, in maintaining their defense upon the merits. And the objection might also be answered by the rule that when work and labor is performed under a special agreement, and the agreement is performed and nothing remains to be done but the payment of the money, the party entitled to compensation is entitled to recover under the common counts, (Feeter v. Heath, 11 Wend. 477.) "When the terms of a special agreement are performed, a duty is raised for which a general indebitatus assumpsit will lie." (4 Coicen, 566. Jexcell v. Schroejipel, 10 Mass. 287.) On the hearing before the referee the defendants offered one of the defendants, the executrix, as a witness for her co-defendants. The referee refused to permit her to be examined as a witness, and in this it is alledged that the referee erred. It is insisted that she was by section 397 of the code a competent witness. Although that section of the code authorizes a defendant to bo examined on behalf of his co-defendant, it is thereby enacted that "the examination thus taken shall not be used on behalf of the party examined." In this case all the defendants only represent the testator; no one of them is liable to the plaintiffs unless all are. and no evidence can bo given in the cause which ean operate for or against one of them and not the others. The code can not apply to a case where a co-defendant can not Fort r. Gooding. give any evidence but that which of necessity must operate in his own favor as well as in favor of his co-defendants. I am therefore of opinion that the referee rightfully refused to permit the executrix, who is one of the defendants, to be sworn as ...


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Product Details
  • ISBN-13: 9781232211259
  • Publisher: Rarebooksclub.com
  • Publisher Imprint: Rarebooksclub.com
  • Height: 246 mm
  • No of Pages: 270
  • Spine Width: 14 mm
  • Width: 189 mm
  • ISBN-10: 1232211257
  • Publisher Date: 01 May 2012
  • Binding: Paperback
  • Language: English
  • Returnable: N
  • Weight: 485 gr


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