
    HARPELL a. IRWIN.
    
      New York Common Pleas;
    
    
      General Term,
    
    December, 1854.
    Examination of parties.—Cototer-olaim:.
    Where a plaintiff calls the defendant as a witness to prove the plaintiff’s claim, and the defendant on a cross-examination in his” own behalf proves a counter-claim as set up in his answer, the plaintiff may be examined in reference to the evidence given by'the defendant on the subject of the counter-claim.
    Appeal from a judgment of a district court.
    The facts are stated in the opinion.
   Ihgbaham:, F. J.

This case is submitted without points.

The notice of appeal states the causes of appeal to be,

1. That the judgment is erroneous.

2. That the court erred in excluding the plaintiff from testifying in his own behalf. .

3. That judgment for defendant was erroneous and without evidence.

Upon the trial the plaintiff called the defendant as a witness to prove the plaintiff’s claim. He admitted the plaintiff’s claim to be correct. On cross-examination he stated he had been in the habit of selling the plaintiff goods. That in Sept., 1852, his claim against the plaintiff amounted to $89,39. That the plaintiff purchased the goods and they were delivered, to him.

The plaintiff then offered himself, to contradict the defendant’s testimony on cross-examination. He was excluded, and the justice gave judgment for the defendant for the balance of his claim after deducting the plaintiff’s bill.

There can be no doubt that the justice was correct in his decision upon the facts as proven before him. The claims of plaintiff and defendant were proven by the defendant alone, and if he was to be credited as to one, he could not be disbelieved as to the other, when his testimony was uncontradicted.

The only question then is, whether the justice-was correct in excluding the plaintiff’s testimony. Section 395 of the Code allows a party to call his adversary as a witness, and such adversary may then be examined on his own behalf. If he testify to new matter not responsive to the inquiries put on the direct examination, or necessary to explain that testimony, or to discharge when his answers charge himself, the adverse party may he a witness.

Here the defendant was called to prove the plaintiff’s claim, and after doing so, he testified to a claim due from the plaintiff to him, to double the amount of the plaintiff’s. This was clearly new matter, not responsive to the inquiries put by the plaintiff, or necessary to explain or qualify his previous answers. ¡Nor would it come within the clause necessary to discharge when his answers charge himself.” That clause refers to the statement of facts showing that the claim he proves had been discharged. Such for example would be the case, if after proving a claim he should testify to payment or a release, or any other matter showing a discharge of the claim so proven.

But when the party sets up a counter-claim as a defence, and when called as a witness, on cross-examination proves such counter-claim, the plaintiff then has a right to testify as to such counter-claim. (Myers a. McCarthy, 2 Sand. S. C. R., 399).

More especially so, when as in this case the defendant asks for a judgment against the plaintiff upon such counter-claim.

The justice erred in excluding the plaintiff from testifying, and the judgment must be reversed.  