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Law School Case Brief

Johnson v. McIntosh - 31 Barb. 267, 1859 N.Y. App. Div. LEXIS 82

Rule:

The provision in the 399th section of the New York code, that a party shall not be examined as a witness unless the adverse party or person in interest is living, does not exclude a party from being a witness when the opposite party is a corporation.

Facts:

The action was brought by the plaintiff, as president of the Ontario Bank, on a promissory note made by Henry L. Barker, dated June 1, 1857, for $427 and interest, at three months, payable at the Ontario Bank to the order of Andrew J. McIntosh. McIntosh was offered as a witness for himself, and objected to as incompetent, on the ground that the real plaintiff, the Ontario Bank, was a corporation. The objection was overruled.

Issue:

Did the court err when it overruled the objection when defendant McIntosh was presented as witness?

Answer:

No

Conclusion:

The provision of the 399th section of the code, that a party shall not be examined as a witness unless the adverse party or person in interest is living, does not exclude a party from being a witness when the opposite party is a corporation. The cases of exclusion are exceptions. To exclude, therefore, a party to a suit from the privilege of testifying in his own behalf, it must appear that the opposite party or person in interest is dead, or that the opposite party is an assignee, administrator, executor or legal representative of a deceased person. A corporation is neither of these. For while it cannot be said to be alive in the sense applied to natural persons, it cannot be said to be dead. It clearly has an existence. This restricting clause, therefore, cannot be applied to corporations. As corporations must necessarily act through living agencies, the reasons upon which this restriction was based do not apply to them, especially so long as the agents through whom the contract in controversy was made are alive. They would be proper and competent witnesses, and the considerations, therefore, which would exclude a party in the case of the death of the other party to the transaction, do not apply at all to the case of a corporation.

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