Tallmadge vs. Tallmadge and Cushman

Tallmadge vs. Tallmadge and Cushman. Where a defendant is examined by the complainant as a party only, he is merely to be examined as against himself, and is not to be cross-examined by his own counsel. But if the complainant examines him as a witness against his co-defendant also, such co-defendant is entitled to cross-examine him, as a matter of course, without any order to that effect. Petition by defendant Cushman, for leave to examine his co-defendant Tallmadge as a witness for the petitioner, before the master, upon a reference. The petition stated that on the reference the counsel for the complainant examined the defendant Tallmadge as a witness; and that he was a material witness for the petitioner, and was not interested in the matter to .which he was sought to be examined. J. P. Cushman, the petitioner, in person. J. Blunt, for the complainant. [MAJORITY — The Chancellor.] The Chancellor. The complainant having examined Mr. Tallmadge as a witness, the defendant Cushman had a right to .cross-examine him, as a matter of course, and without an order to that effect. If he was examined as a party merely, he could only be examined as against himself, and could not be cross-examined by his own counsel. But if his testimony can, by any possibility, affect the rights of Cushman, he is made a witness in the cause, and consequently Cushman has a right to «cross-examine him. -Order according to prayer of petition.