Symonds agt. Peck, and Peck, jr.

rules of examination as any otner witness, to testify, either at the trial, or conditionally, or upon commission."

It is claimed and insisted, however, by the defendant, Henry Peck, that the fact that Philip Peck, jr., is made a party defendant, cannot render him a competent witness as between him and the plaintiff on the issue in this action, if he would be incompetent as a witness for the plaintiff were he not a party to the suit. In this he is most clearly right; for the principle is undoubtedly sound, that a person incompetent to testify for a party, cannot be rendered competent by being made a party to the record. (Pillow agt. Bushnell, 5 Barb. R. 156.)

The question recurs, then, whether Philip Peck, jr., would be a competent witness for the plaintiff on this issue joined between the plaintiff and the defendant, Henry Peck, were he not a party defendant in the action? The 398th section of the Code declares that no person offered as a witness shall be excluded by reason of his interest in the event of the action; but section 399 declares, that the last section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended. This provision, that it shall not apply to a party to the action, does not mean to embrace that class of cases embraced by section 390, which gives the plaintiff the right to call either of the defendants, or either of the defendants to call either of the plaintiffs, and consequently would not deprive the plaintiff of the right to call Philip Peck, jr., because he is a defendant in the suit.

The whole question, then, depends upon the fact whether Philip Peck, jr., is the person for whose immediate benefit this action is prosecuted? If so, he is not a competent witness; if not, he is a competent witness for the plaintiff, and the court erred in excluding him.

This question came before the superior court of the city of New-York, in the case of Davies & Rockwell agt. Cram and others, (4 Sanf. S. C. R. 355,) and that court held, in just such a case, that the insolvent debtor who has assigned his property to assignees for the payment of his debts, is a competent witness in an action brought or defended by his assignees in rela

Symonds agt. Peck, and Peck, jr.

tion to his estate-holding that such suit is not prosecuted or defended for his immediate benefit, within the meaning of the Code. To the same effect, precisely, is the case of Allen and others agt. The Franklin Fire Insurance Company, (9 How. P. R. 501,) decided by the full bench of the third district.

I am aware that this question was decided otherwise in the case of Fitch agt. Bates, (11 Barb. Rep. 471,) by the general term of the fourth district. I have examined these cases with some care, and have come to the conclusion that the question is rightly decided by the superior court, and the bench of the third district. The plaintiff sues as trustee, and the fund of the litigation goes first to the creditors of Philip Peck, jr.; and none of it will ever come to the hands of Peck, unless there is a surplus after paying his creditors. It is true, Peck is interested to have the plaintiff recover, but that does not disqualify him as a witness, unless the suit is prosecuted for his immediate benefit within the meaning of the Code, and which I do not think it is.

As to the question whether the bank judgment was paid or not, I do not see what difference it can make with Philip Peck, jr., or the plaintiff. The time for redemption had gone by as to Philip Peck, jr.; and whether the sheriff conveyed to Lovina Clarke, the purchaser of Tiffany, or the Messrs. Titus, was wholly immaterial to him. The Messrs. Titus certainly had a right to redeem on their judgment of Mrs. Clarke; and whether they redeemed directly of her or of Tiffany, does not concern the plaintiff or Philip Peck, jr. If the bank judgment was in fact paid, the Messrs. Titus paid $184.30 more to redeem on their judgment than they were required to pay; but it is not perceived how that can invalidate their redemption. As regards Philip Peck, jr., or the plaintiff as his assignee, these intermediate redemptions by his creditors are "res inter alios acta." (1 W. R. 46.)

The judgment should be reversed, and a new trial granted: costs to abide the event, for the exclusion of Philip Peck, jr., as a witness for the plaintiff.

The Mechanics' Banking Association agt. Kiersted.

SUPERIOR COURT.

THE MECHANICS' BANKING ASSOCIATION agt. CHRISTOPHER KIERSTED.

When a party, against whom a verdict is rendered, moves on a case at special term, and obtains a new trial on the ground that the verdict was against evi dence, on the terms of paying the costs of the trial and of the subsequent proceedings, the opposite party is entitled to a fee of $10 for every term the cause is necessarily on the special term calendar, on the case made, exclusive of that at which it is heard; and for the latter term, to the fee given by the Code for the trial of an issue of fact.

New-York General Term, February, 1855.-Before all the justices.

THIS action was tried, before a justice of this court and a jury, in April, 1854. The defendant obtained a verdict. The plaintiff made a case, on which he moved for a new trial, on the ground that the verdict was against evidence, which motion was granted upon the terms of paying the costs of the trial and of the subsequent proceedings. When the case was settled, the motion for a new trial was noticed to be made at a special term of the court, and the cause was placed on the calendar. It was so noticed and on the calendar three terms, exclusive of that at which the motion was argued. The clerk, on adjusting the costs, to be paid as a compliance with the terms of the order on which a new trial was granted, allowed,

For the term at which the action was tried,
For the three terms it was on the calendar, on the

$12.00

motion for a new trial on the case made,

Trial for issue of law,
Disbursements,

The Mechanics' Banking Association agt. Kiersted.

The plaintiff appealed from the adjustment, and insisted that the Code has made no provision for compensating the services of an attorney in resisting such a motion, unless under § 315, a sum, not exceeding $10, may be allowed, as the costs of a motion.

R. E. MOUNT, jr., for plaintiff.

WILLARD, SWEENY, and ANDERSON, for defendant.

By the court-BOSWORTH, Judge. The motion for a new trial, on a case made, can be heard only at a special term of the court. (Code, § 265.) Such a motion cannot be made, before a judge or justice, out of court. (Id. § 401.)

The motion is an enumerated motion. (Rule 27.) It can be noticed only for the first day of the term, and must be placed on the calendar. (Rule 28.)

Section 315 of the Code has no reference to such a proceeding, but relates solely to special non-enumerated motions.

In Waterbury agt. Westervelt, (3 Sand. S. C. R. 749,) this court held that, in a case in which the questions of law arising upon a trial or verdict were subsequently heard at a special term, the successful party was entitled to the fee allowed by the Code for the trial of an issue of law.

In Wiggins agt. Armstrong, (4 Sand. 688,) the same rule was applied, and a term fee of $10 for each term, exclusive of that at which the cause was argued, was allowed; and for the latter term, the prescribed trial fee.

In Roosevelt agt. Brown, (1 Duer's R. 642,) this court, by a decision made at general term, re-affirmed this construction of the Code, and allowed costs accordingly.

Ellsworth agt. Gooding, (8 How. Pr. R. 1,) and Hager agt. Danforth, (id. 448,) were actions in which the defeated party moved, at special term, for a new trial, on a case.

In the former, Mr. Justice HARRIS, and in the latter, Mr. Justice PARKER, decided that a fee of $10 for each term the cause was on the calendar, except that at which it was heard, was allowable, and for the latter term a trial fee.

The Mechanics' Banking Association agt. Kiersted.

Such a motion is an actual hearing and examination of a cause upon the merits, upon the issues joined in it. It is substantially a trial, as that proceeding is defined by the Code. (§ 252.)

We think the provision allowing a fee for the trial of a cause, should be so construed as to entitle the prevailing party to that fee, whenever such a hearing has been necessarily had of all the issues of law, or of all the issues of fact upon the merits, at a stated term of the court.

As the cause, upon such a hearing, is necessarily upon the calendar, the fee of $10 for each term, when it is not reached or postponed, is also allowable.

The rule is to be deemed settled in this court, that in such a case, when either party is entitled to the costs of such a proceeding, he is to be allowed a fee of $10 for every term at which the cause is necessarily on the calendar, and not reached or postponed, exclusive of that at which it is tried or heard; and for the latter term, the trial fee prescribed for such an issue as is tried or heard. (Code, § 306, sub. 8.)

The trial, in this case, was practically that of an issue of fact. A defendant is entitled, in such a case, to be paid $12. The compensation being the same as for the trial of an issue of law, the amount of the bill as adjusted is correct. The only error is in the terms of the charge. That may be corrected, and the adjustment, as made by the clerk, will be affirmed.