Misc.] County Court, Onondaga County, December, 1905. damages for a like cause, which might have been allowed to him upon the trial of the action, he, and every person deriving title thereto through or from him, are forever thereafter precluded from maintaining an action to recover the same, or any part thereof." § 2947. "But the prohibition con tained in the last section does not extend to either of the following cases." § 2948. "Where the counterclaim consists of a claim for unliquidated damages." Subd. 3. It appeared upon the trial, by the evidence of the plaintiff, that there was an arrangement between the parties that the value of the services rendered by the plaintiff (the claim in this action) should be applied upon the note held by the defendant; which was the only claim the plaintiff owed the defendant and was the note upon which the defendant recovered judgment. The defendant also invokes the well-known rule, so emphatically stated in the text books and cases, that a judgment is conclusive of all matters essential to the adjudication. That, in this case, the judgment in favor of the present defendant upon a promissory note was, in fact, a determination that the same had not been paid, which is undoubtedly correct; and that it also necessarily determined that nothing was due the plaintiff in this action for services, which is the point in issue in this case. Binck v. Wood, 43 Barb. 315, states the doctrine advanced by the defendant, and with which I have no contention. In the Binck case, the defendant, Wood, in a former action (which was not defended) recovered judgment for the full amount of a promissory note, and did not give credit for $100, which concededly had been paid thereon. Binck, a surety of the maker of the note, brought an action to recover the $100 so paid, which the court held could not be maintained. We must bear in mind that the determination of the question whether the plaintiff is precluded from maintaining an action is to be determined, solely, by the provisions of section 2947 and 2948, heretofore cited; and that a case which did not arise in Justice's Court under the same or a similar statute cannot be held to be a decisive authority. And also that, independent of the sections of the Code mentioned, many of the cases cited are not in point because the defense, which County Court, Onondaga County, December, 1905. [Vol. 49. might and should have been proved, related not to the claim of the former defendant, but to the claim of the then plaintiff. In other words, went to the right of action as the defense of payment, Loomis v. Pulver, 9 Johns. 244, of usury. Newton v. Hook, 48 N. Y. 676; or, as in Gates v. Preston, 41 id. 113, the familiar case of an action by a physician for professional services, the recovery by the physician was necessarily an adjudication that the services sued for were skillfully performed. In many of the cases cited, the claims sued upon in the second action, and which should have been allowed in payment or reduction of the amounts sued on in the first. action, were concededly liquidated; as in Binck v. Wood, in which the amount paid was not disputed. So that the saine question is presented, whether, under the cases or the provisions of the statute, the plaintiff's claim is an unliquidated one. As stated in Binck v. Wood, 43 Barb. 321, 322: "The true question is, I think, whether the defense afterwards arising by the act of the parties extinguishes the demand - like payment, accord and satisfaction, release, etc.; or whether it is merely in the nature of a set-off, which never extin-. guishes the demand until applied and adjudged by the court." The courts have defined the meaning of liquidated demand in language so broad that almost any claim short of damages for an assault and battery might be embraced in the definitions given; but, upon principle, and under the cases, it seems to me that the plaintiff's claim was unliquidated. The number of days he worked for the defendant was the subject of serious dispute, and of conflicting evidence. The value of his services was also in controversy. The claim, so far from being liquidated, varied from seventy-five dollars, which the jury might have determined from the plaintiff's evidence, to about twenty-five dollars, if they believed the evidence of the defendant and his witnesses (I only state from memory). In Nassoiy v. Tomlinson, 148 N. Y. 326, Mr. Justice Vann, on page 330, used this language: "A demand is not liquidated even if it appears that something is due, unless it appears how much is due." Motion for nonsuit denied. Misc.] County Court, St. Lawrence County, December, 1905. Matter of the Application to fine ALFRED W. Birdsall for refusal to testify in an action entitled: The People of the State of New York v. Alfred W. Birdsall and Absalom P. Harper. (County Court, St. Lawrence County, December, 1905.) Constitutional law-Rights guaranteed to persons accused of crime- In view of the constitutional provision that no person shall "be compelled in any criminal case to be a witness against himself", the provision of the Forest, Fish and Game Law (L. 1900, ch. 20, § 193, as amd. L. 1903, ch. 353) that "No person shall be excused from testifying in any civil or criminal action or proceeding taken or had under this act upon the ground that his testimony might tend to convict him of a crime", in order to save it from the taint of unconstitutionality, must be held not to include a defendant put upon the witness stand by the People; its true intent and meaning being that, when a person not a defendant is called as a witness either in a civil or criminal action, he is not excused from giving evidence against another person upon the ground that his testimony might tend to convict him of a crime. THIS proceeding grew out of an action brought against the appellant and one Absalom P. Harper to recover a penalty for killing a wild deer and having the venison therefrom in their possession, July 15, 1905, in the town of Hopkinton, in this county. The action was brought on for trial before a justice of the peace of Parishville, September 4, 1905. The defendant Birdsall was subpoenaed by the People and, after being duly affirmed, was examined by counsel for the People. After answering several questions, he refused to answer whether, on or about the time and at the place alleged, he shot a wild deer; and, later on, he refused to state whether he knew of the killing of a wild deer, either by himself or the defendant Harper, at the time and place alleged. The witness put his refusal to answer on the ground that his answers might County Court, St. Lawrence County, December, 1905. [Vol. 49. tend to convict him of a crime, or incriminate him. His attention was called to section 193 of the Forest, Fish and Game Law as offering him protection; and the court directed the witness to answer, which he again refused to do. Application was made, September 9, 1905, under section 2975 of the Code of Civil Procedure, to punish the witness for contempt in refusing to testify. A warrant was issued, the witness arraigned, and the matter brought on for determination before the justice, September fifteenth. The witness appeared in person and by counsel and objected to the imposition of a fine on two grounds; (a) that the witness could not be fined under this section for the reason that, so long as he testified in part, he did not "refuse to testify" as contemplated by the statute, and (b) that the witness could not be compelled to answer a question which would tend to incriminate him. The court then imposed a fine of ten dollars and sixty cents, costs, upon the witness; and, from the judgment for that sum entered herein, this appeal has been taken. Theodore H. Swift, for appellant. Warren O. Daniels, for respondent. HALE, J. Counsel on both sides have submitted the case with the request that the court determine the construction of section 193 of the Forest, Fish and Game Law to the exclusion of any question of practice involved, it being conceded by counsel for the People that no contempt can be predicated of defendant's refusal if he was not compellable to testify, and that that question may be determined on this appeal as from a judgment rendered by a Justice's Court; and I understand the concession to be made by appellant's counsel that, if defendant is compelled to answer, the fine imposed is not objected to, nor the regularity of the proceeding questioned. In my opinion, section 193 of the game law is not intended to apply to a party to the action. The first part of the section reads as follows: "No person shall be excused from testifying in any civil or criminal action or proceeding taken or had under this act upon the ground that his testimony Misc.] County Court, St. Lawrence County, December, 1905. might tend to convict him of a crime." It will be observed that no distinction is made between civil and criminal actions, or other proceedings, if any, which may be taken or had under the game law; so that, if these words are to be taken literally, a sole defendant in a criminal action would have no greater claim to be excused from testifying than would a sole defendant in a civil action. But section 6 of article I of the State Constitution provides that no person shall "be compelled in any criminal case to be a witness against himself." The fifth amendment to the Constitution of the United States contains the same prohibition. We must conclude, therefore, either that this part of section 193 does not relate to a party to a criminal action, or that it is unconstitutional. But it relates as much to a criminal as to a civil action, and it can hardly be rejected as unconstitutional as to one and sustained as constitutional as to the other. No statute is to be condemned as unconstitutional, if it is capable of a construction which will save it from such condemnation. It is quite apparent that, if it does not relate to a party to a criminal action, it may be saved, if the protection accorded to a witness not a party is coextensive with the risk taken by him in giving his testimony. Section 837 of the Code of Civil Procedure provides that: "A competent witness shall not be excused from answering a relevant question, on the ground only that the answer may tend to establish the fact, that he owes a debt, or is otherwise subject to a civil suit. But this provision does not require a witness to give an answer, which will tend to accuse himself of a crime or a misdemeanor or to expose him to a penalty or forfeiture; nor does it vary any other rule, respecting the examination of a witness." This well established rule of evidence, operating in all civil cases, must have been intentionally set aside by the Legislature in framing section 193 of the game law if respondent's claim is correct. Perhaps it is within the power of the Legislature to go to the extent of providing that a witness may be compelled to answer a relevant question, even though his answer may tend to establish the fact that he has subjected himself to a penalty or forfeiture. Lees v. United States, 150 U. S. 476, seems |