
    Henry W. Penny, Plaintiff and Respondent, v. Garret C. Black, Defendant and Appellant.
    1. In an action brought by a plaintiff to recover the possession of personal property taken from him by the defendant, the possession whereof the plaintiff claims by virtue of a hiring from a third party, in whose possession it was, and by whom it was delivered to him upon hire and on his express agreement to return it to such third party at the expiration of the time of hiring, the defendant is competent to testify as a witness in his own behalf to prove a right of possession in himself, notwithstanding such third party, under whom the plaintiff claims, is dead at the time of the trial.
    2. In such case, the party who let the property to the plaintiff upon hire is not “the adverse party or person in interest,” and the plaintiff is not an . “ assignee ” within the meaning of section 399 of the Code as amended in 1857, which forbids a party to testify when the opposite party is an assignee, or when the adverse party or person in interest is not living.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, December 7th, 1859;
    decided, January 14th, 1860.
    This action was tried before Jesse C. Smith, Esq., as Referee, on the 28th day of January, 1859.
    It was brought to recover the possession of a chronometer, with damages for the alleged illegal detention thereof.
    The defendant denied the right of the plaintiff to the possession of the chronometer, and claimed to be himself in rightful possession thereof as one of the firm of Creighton & Black, to whom, as he alleged, the chronometer belonged.
    , It appeared on the trial that Frederick Creighton and the defendant were in partnership in “ the chronometer business ” for about three years prior to May, 1856: at that time they dissolved partnership.
    On the 5th Of June, 1856, the plaintiff hired the chronometer in question from the said Frederick Creighton, for the use of his ship, received it from him, and agreed to return it to him “ at the expiration of the then present voyage, or within twelve months from the date ” of the receipt.
    On the subsequent return of the ship to this port, and on the 29th of September, 1856, the defendant, in the absence of the plaintiff and of his mate from his ship, obtained possession of the chronometer and refused to deliver it again to the plaintiff.
    The questions, whether this chronometer had ever belonged to the firm of Creighton & Black?—if so, upon what terms and under what agreement (if any) it was left in the separate possession of Creighton when the firm was dissolved?—and other questions bearing on the title of the defendant as copartner, and on the right of Creighton to confer upon the plaintiff the right of possession, were subjects of investigation and contest on the trial. It appeared that, in October, 1857, after the alleged wrongful taking and detention by the defendant, and about one year after this action was brought, but before the trial, Creighton died.
    On the trial the defendant Black, -offered himself as a witness on his own behalf. The Referee excluded his testimony for the reason (stated, by the Referee in settling the case herein) as follows, viz.: “ the said Black could not be. examined as a witness in this action to prove his title to the property in question, or his right to the possession as against the plaintiff who claims the right to the possession, through Frederick Creighton who is dead.”
    To this ruling the defendant excepted.
    ■ . Other questions arose on the trial which it is not necessary to state, as the opinion of the General Term is confined exclusively to the competency of the defendant to testify for himself. A further statement of the case will be found in the opinion of the Court.
    The Referee reported in favor of the plaintiff, and the defendant appealed to the General Term.
    
      Benjamin C. Hitchings, for the defendant (appellant).
    I. The Referee erred in excluding the testimony of Garret C. Black, the defendant, who was examined as a witness in his own favor.
    He was objected to as incompetent when offered. The Referee reserved his decision, and finally after the cause was submitted to him, ruled out his testimony.
    The testimony was ruled out on the ground that Frederick Creighton, who had let the chronometer to the plaintiff, had died since the commencement of the suit, but before the trial. And the Referee supposed the case to come within the exception contained in the act, which provides for the admissibility of parties as witnesses, viz.: “ But a party shall not be examined when the opposite party shall be the assignee, administrator, executor, or legal representative of a deceased person. The ground taken by the Referee being, that the plaintiff was the assignee of Frederick Creighton, who at the time of the trial was deceased.
    The point is very far fetched. The plaintiff was not in any sense the assignee of Creighton.
    The. statute by its context seems to refer only to a general assignee, executors, &c., of a deceased person. It might perhaps be extended to the case of the assignee of the claim in suit, the assignor being dead.
    But in this case the plaintiff was not the general assignee of Creighton, nor was he the assignee of the claim in suit.
    
      The claim upon, which the plaintiff brought his suit was entirely his own. He claims to be entitled to the possession himself, under a valid subsisting lease. He made the demand upon his own alleged right, and upon refusal brought his action.
    The suit cannot possibly be claimed to have been brought by him as assignee of Creighton.
    The exception in the statute does not extend to the case of a lessee or vendee, or one who has derived title from a deceased person.
    The suit was brought on the plaintiff’s own right or claim, and Creighton was a perfectly competent witness, perhaps he would have been a material witness for the plaintiff as to the very matters and things which Black testified to on his own behalf, but his death before trial is no ground for excluding testimony on the part of the defendant.
    If the exception in the statute were construed to cover such a case as this, it would be impossible to say what case it would not cover.
    (The other points argued were not considered at the General Term.) .
    
      C. A. Sand, for the plaintiff ( respondent).
    I. The defendant’s testimony, (to show his own title from Creighton,) as to matters to which Mr. Creighton, if living, could be produced to contradict him, was properly held inadmissible. The objection raised was to his competency as a witness; and at least his testimony, as to transactions with the deceased'assignor of plaintiff’s title by contract to the property, should not be admitted.
    The precise point is believed not to have been adjudged. McGinn v. Worden, (3 E. D. Smith, 335,) and Van Wicklen v. Paulson, (14 Barb., 654,) were upon the question of the right of a party to be examined in reply to the testimony of an assignor, and were restrictive against such examination. In each case the assignor of the property would have been competent before the Code, and these decisions were upon the express ground, that the assignor of the property was not, in either case, the “ assignor of a thing in action or contract.” Neither the letter nor the spirit of the statute, admitting a party as a witness in the first instance, applies to this case. The language ( Code, § 399) is, that a party cannot be his own witness, unless the adverse person or party in interest is living, nor when the opposite party is “ the assignee, administrator or legal representative of a deceased person.” This difference of language is very material, and must have force to guard against a dangerous innovation upon the rules of evidence. It would be intolerable if the title of an heir or executor could be sworn away by the opposite party in suits of ejectment or trespass upon real or personal estate. It is the assignee, not of the “thing in action,” but of the 11 deceased person.,” who is protected, and that protection must apply to property derived from the deceased person, the title of which is involved, as well as to a mere chose in action so derived. This construction guards against dangerous innovation from this, in the same manner as the decisions referred to from the other clause of the statute. It is clearly in accordance with the intent and object of the law. (27 Barb., 238; 9 Abbott, 40.)
    II. The testimony (which the Referee, after he had taken it, unnecessarily decided to strike out) could not, by any possibility, affect the result under his ruling and findings, the second and third of which rulings are unquestionably correct, and the first of which found the transfer of the property to the firm of Creighton & Black. A new trial should not be granted for error in this regard then. (Crary v. Sprague, 12 Wend., 46, and other authorities.)
   By the Court—Moncrief, J.

The defendant desired to be examined on his own behalf, and it was objected that he was an incompetent witness “ on the ground that the plaintiff derived his title to the chronometer in question from Frederick Creighton, who was deceased.” The Referee reserved his decision and took the testimony subject to his decision as to its admissibility, to be afterwards made. The Referee subsequently upon the close of the testimony did decide “ That the said Black could not be examined as a witness in this action to prove his title to the property in question, or his right to the possession as against the plaintiff who claims the right to the possession through Frederick Creighton'who is déad.” The testimony of said Black taken as aforesaid was stricken out, and the defendant excepted.

The action is for the wrongful taking and detention of a chronometer. The complaint alleges “that the plaintiff on or about the 13th of September, 1856, was the master of the schooner Emily Keith, lying at the city of New York, and then and there had in his possession on board said schooner, certain personal property, to wit: a certain marine box chronometer, numbered 1354, with the appurtenances thereto belonging; which possession was by virtue of an agreement made by the plaintiff with one Frederick Creighton, the owner of said property, for the use and possession by the plaintiff, and for paying a certain sum for the use thereof, and by which the plaintiff engaged to return the same to the said Frederick Creighton, and that at the time and place aforesaid, as the plaintiff is informed and believes, the defendant wrongfully took from the said schooner and unjustly detained the same; and the said property was so taken and detained without the consent of the plaintiff a.t the. time of the commencement of this action, and was wrongfully withheld by thi defendant in his said defendant’s possession; and the value of said property at the time of said taking was two hundred dollars; wherefore the plaintiff demands that the defendant may be adjudged to deliver to the said plaintiff said property, and to pay to the plaintiff damage, for the detention thereof to the sum of one hundred dollars, and the costs of this action, and that the said chronometer may be forthwith delivered to the plaintiff.

The answer denied the wrongful taking and unjust detention of the chronometer by the defendant.

The defendant also averred, that Creighton had no right, title or ownership in, or to the said chronometer, except as a copartner with him, said defendant; that said chronometer for a long time previous to said alleged hiring, and always since, had been and was the property of said Creighton and the defendant, the firm of Creighton & Black; and being the property of said firm, said Creighton had let the same out to hire to the owners of said schooner for the use thereof for the voyage she was then about undertaking. That on or about the 30th September, 1856, the said voyage being completed, and the term for which the plaintiff had hired the same having expired, the. said chronometer was voluntarily returned to the defendant who received it, and held it as a copartner of the firm of Creighton & Black as aforesaid, as he was lawfully entitled to do. And defendant denies that at the time of the commencement of this suit, or at the time of the alleged wrongful taking or detention, the plaintiff was entitled to the possession of the said chronometer, and alleges that he, the defendant, was entitled to the possession of the same. Wherefore the defendant demands judgment against the plaintiff for the value of the said chronometer, and damages together with the costs.

Was the defendant, Black, competent as a witness on Ms own behalf?

The action was tried in January, 1859; and section 399 of the Code, as amended by the act of April 13, 1857, (Sess. Laws, 1857, vol. 1, p. 744,) was then in force.

That section allows a party to be examined as a witness in his own behalf, provided that “the adverse party or person in interest is living,” and that “ the opposite party” is not “ the assignee, administrator, or legal representative cf a deceased person,” and provided also that ten days’ notice of such intended examination has been given, as this section prescribes.

This notice had been given: the plaintiff, the sole party in interest, is living, and he is not the administrator or legal representative of a deceased person. Neither is he “the assignee” of “a deceased person ” in the sense that he is suing in a representative capacity, or to enforce rights of his assignor in the discharge of Ms duty as assignee. If the maxim, noscitur a sociis, has any application to the words connected together in this section, viz., “assignee, administrator, or legal representative, of a deceased person,” then it aids the construction that the word assignee, as here used, describes a person suing as such, and for the benefit of third persons, and in a representative or fiduciary capacity.

Any other construction would exclude a defendant from testifying in any action for the unlawful taking, injury to, or conversion of personal property, if the person from whom the plaintiff bought it was dead; and this would be so, whether his testimony related to the validity of the plaintiff’s title or to some act of justification valid in itself, even assuming the plaintiff to have acquired from his vendor a title good as against all the world.

Section 399 does not make the admissibility of a party as a witness in his own favor dependent in any way upon the parts of the controversy or nature of the matters to which his testimony may relate, but upon the character in which the plaintiff sues.

The concluding provisions of the section favor this construction. They relate to the examination of “ the assignor of a thing in action or contract,” as a witness on behalf of one deriving title through him. That covers the case of a suit upon the thing in action or contract so assigned. (Crosby v. Nichols, 3 Bosw., 450.)

But such assignor shall not be examined “ against an assignee or an executor or administrator, unless the other party to such contract or thing in action whom the defendant or plaintiff represents is living,” &c.

However indefinite or comprehensive the word 111 assignee” may be supposed to be, I think it is here used to represent a party who is prosecuting or defending in a representative capacity for the benefit of the estate which is vested in him as assignee, or for the benefit of others, and not a purchaser of personal property in his own right and on his own sole account.

Such a plaintiff as was before the Court in Hall v. Robinson, (2 Comst., 293,) McGinn v. Worden, (3 E. D. Smith, 355,) and Crosby v. Nichols, (supra,) is not an “ assignee” within the meaning of that word as used in section 399 of the Code.

The Referee having rejected the witness and his testimony as incompetent, he committed an error, for which a new trial must be granted, with costs to abide the event, &e.

Ordered accordingly.  