#### Myers, Appellant, *v.*McCarthy, Respondent.

Where a defendant, on the trial of a cause, called the plaintiff as a witness, under the 349th section of the Code, and in reply to a question put to him by the *court,*the plaintiff testified to new matter, going beyond the point to which he was examined by his adversary : *Held,*that the defendant was entitled to offer himself as a witness for the purpose of answering the new matter.

March 10, 1849.

This was an appeal from a judgment of the assistant justices’ court. McCarthy sued Myers in the court below, for wages due for the work and labor of his son. The pleadings were a *400complaint, answer and reply. The plaintiff proved the amount of labor performed, and the value thereof, and rested his case. The defence was, that the demand in suit had been settled by the giving of Myers’ note for the amount, at ninety days, and the acceptance thereof by McCarthy, the plaintiff. For this purpose, Henry D. Sharrat was examined as a witness, who testified that in June, 1848, he was a clerk for a lawyer of the name of Van Hovenburgh, whom McCarthy employed to collect the demand in question ;• that a letter was written to Myers on the subject of the claim; and he called at Van Hovenburgh’s office; that he said he could not pay McCarthy’s claim, but would give his note for the amount at ninety days ; that the witness said he would consult McCarthy ; that McCarthy soon after came into the office, and being told what Myers proposed, said he did not want a note; that the witness told him that the best thing he could do, would be to take the note ; to which he replied, “ Very well,” That the witness then drew the note; and it was signed by Myers, and read by McCarthy; that Myers then left the office, and the witness gave the note to his principal, Van Hovenburgh; that the note was given as a settlement in full for the amount due from Myers to McCarthy, for the wages which are the subject of this suit; that the witness acted throughout as Van Hovenburgh’s clerk, and that McCarthy was privy and a party to the whole transaction of taking the note ; and that subsequently, he had heard McCarthy demand the note from Van Hovenburgh. McCarthy then called Daniel B. McCarthy, who testified generally as to McCarthy, the respondent’s, demand of his papers from the witness Sharrat, &c. After which Myers called McCarthy himself as a witness, who, in reply to a question by Myers, said he had never applied to Van Hovenburgh for the note ; and then further, in reply to some questions put to him by his own counsel and by the court, he testified that he had never given any authority to Van Hovenburgh to act as his attorney, as aforesaid. Myers then offered himself as a witness, to rebut the testimony of McCarthy not responsive to Myer’s inquiries. This evidence was objected to by McCarthy, and was rejected by the justice. *401The court thereupon gave a judgment for McCarthy for #42 38; and Myers appealed.

*C. N. Potter,*for the appellant.

*D. A. Kane,*for the respondent,

By the Court. Vanderpoel, J.

The 349th section of the Code of Procedure provides, that *“*A party examined *by*an adverse party may be examined on his own behalf in respect to any matter pertinent to the issue. But if he testifies to any new matter, not responsive to the inquiries put to him by the adverse party, such adverse party may offer himself as a witness in his own behalf.”

In this case, the question whether Van Hovenburgh, or his clerk, was authorized to take the note of the defendant below, was a material one. The defendant, under the above section of the code, called the plaintiff below, and asked him whether he ever went back to Van Hovenburgh’s office to ask him for the note, after it had been taken by Sharrat. To this, he answered in the negative, and then, in reply to an interrogatory propounded to him by the court, he further stated, that he never consented to take the note in question. This answer, not called forth by the defendant, went to a vital point in this cause. In making it, the plaintiff below went beyond the point to which he was examined by his adversary, and it was therefore emphatically a case where such adversary might offer himself as a witness on his own behalf, in respect to the new matter. It was no answer to the defendants request to be sworn in respect to the new matter, that it was called forth by a question of the *court.*It was nevertheless evidence in the cause, and such as the defendant below should have had the privilege of answering by his own testimony, if he could. The justice was clearly wrong in rejecting the *defendant;*but as the plaintiff below had no agency in inducing the error, and it was the act of the justice alone, we do not think the plaintiff ought to be mulcted in costs. The judgment must therefore be reversed, without costs.

*402We forbear to express any opinion upon the point whether the plaintiff below did, in point of fact, authorize the note to be taken. We reverse the judgment exclusively on the ground that the justice erred in refusing to let the defendant testify in respect to matter which the justice himself improperly called forth.

Judgment reversed.