Cannon v. Van Wagner , 2 E.D. Smith 590 ( 1855 )

Woodeuff, J.

The grounds stated in the notice of appeal, relate chiefly to alleged errors in fact, in the finding of the justice. We have so often held, that where the evidence is conflicting, we do not interfere with the finding below, even if we think that upon the same evidence we might not have come to the same conclusions, that it seems wholly unnecessary to repeat the proposition.

Taking into view the testimony of the co-defendant, Rowe, there was some evidence in support of every fact necessary to support the plaintiff’s case. He testifies to his contract with the owner, — that he performed the work in conformity with that contract, until he was stopped by the owner, — that he bought materials‘‘for the job” from the plaintiff, — and that the plaintiff’s bill is the bill of the materials he bought, to add to and repair the defendant’s house, — and that the defendant owed him (the contractor) $35. The copy notice of lien produced and received in evidence without objection, purports to have been filed on the 11th of January, 1855. This was prima facie sufficient. It is true that there is counter evidence, and a receipt purporting to be in full is produced, but the witness explains that, in consisteftcy with his other evidence, and we cannot say that the finding of the court below is without evidence, or so far against the weight of the testimony, that we can reverse upon that ground.

The only other question is, whether in an action to foreclose a lien claimed by a material man, the contractor, being a party defendant, is a competent witness for the plaintiff ?

It is claimed that he is disqualified, because he is both a party to the suit and interested in the event; that although an interest in the event does not alone disqualify, under section 398 of the Code, yet that that section does not apply to a party to the action, and that although a party to an action may, under section 390, examine any one of several adverse parties as a witness, yet, that this section is also restrained by section 399, so that such adverse party being interested in the plaintiff"'s favor, cannot be permitted to testify for him. That is to say, no party to the action who is interested to effect a recovery, can be examined by the plaintiff, although he may be a defendant, and so be within the terms adverse party, in section 390. That the disqualification implied in section 399, applies as well to the adverse party as to the party offering himself as a witness in his own behalf, and that therefore, a plaintiff cannot call as a witness a defendant who has an interest in the plaintiff’s favor. This view of the construction of the sections of the Code referred to, has been held in several cases. (See Hallenbeck v. Van Valkenburg, 1 Code, R. N. S., 33. Combs v. Bateman, 10 Barb. 574. Holman v. Dord, 12 Barb., 336. Fitch v. Bates, 11 Barb. 473).

But without expressing an opinion upon this point, it must suffice to say, that in my judgment, the witness here had no disqualifying interest as a party or otherwise. He was the contractor for the repairs and alterations of the building, and was, of course, bound to the defendant for the perfonnance of the work, and bound to pay for all the materials he used, and if he did not do so, and the defendant sustained loss, or was compelled to pay money by reason of his default, he was liable to the defendant to make him full indemnity.

How then was he interested ? He owed the plaintiff the debt. If the plaintiff recovered, then his debt to the plaintiff was paid, and his claim against the defendant was reduced to a corresponding extent. So that upon the question, whether he himself owed the plaintiff anything, he was testifying against his interest. He was taking his own money from his co-defendant’s hands, and for ever depriving himself of its enjoyment by giving it to the plaintiff, from whom he can never reclaim it.

And upon the question, whether the co-defendant (the owner) was indebted to himself (the witness), his interest was balanced, for being bound to indemnify the owner against such claims, it is as much for his interest to protect the owner as to secure the debt due the plaintiff. For if the owner should be compelled to pay money to the claimant, he could recover full indemnity from the contractor. In other words, if the money is due from the owner to the contractor, then the interest of the contractor is balanced, because the effect of a recovery is to take his own money and pay his own debt, and every dollar recovered is a proper charge against the witness, and reduces the owner’s liability to him. If no money is due from the owner to the contractor, then his interest is balanced, because, although the effect of a recovery is to pay his indebtedness to the plaintiff, it nevertheless creates a corresponding liability to the owner against himself, and in an action by the owner against him to recover indemnity, or in an action between them to settle their accounts under the contract, the judgment recovered by the claimant in this suit, although it would be evidence in the owner’s favor of the amount he had been compelled to pay, to satisfy liens arising from the contractor’s default in paying his own debt, would not be evidence in the contractor’s (the witness’s) favor to prove that when it was rendered anything was due from such owner.

I think, therefore, that the interest of the contractor is so balanced, that he is a competent witness for the plaintiff.

The judgment must, therefore, be affii’med.