
    John F. Whelan, Appellant, v. Andrew J. Gorton, Respondent.
    (City Court of New York — General Term,
    February, 1896.)
    1. Evidence — Production of paper testified to by witness.
    Where the sole witness as- to an alleged gift by a decedent has testified that at the time thereof the decedent executed a will drawn up and witnessed by the donee, the opposite party has a right to the alleged will for the purpose of examining the witness as to the circumstances attending its execution, and to introduce it in evidence if its contents disprove the making of the gift.
    2. Same — Notice to produce.
    To entitle the party to the use of such paper, where it is in court, service of notice to produce is not necessary.
    Appeal by plaintiff from judgment for defendant rendered by the court without a jury.
    
      E. J. Dunphy, for appellant.
    
      Goldsmith & Doherty, for respondent.
   Van Wyck, Ch. J.

The plaintiffs, as administrators of one O’Connor, deceased, sued the savings bank for funds deposited by deceased, and this defendant sought and was allowed to interplead instead of the bank upon his claim that deceased, just before his death, had given and delivered to him the bank book containing these deposits. The record shows that this defendant had first brought action > against the bank, making the same claim in that action that he does in this, and that upon the trial of that first'action the fact was.disclosed that the deceased had made what purported to- be his will, . which was witnessed' by the plaintiff therein (the defendant herein). .

The record of the trial now under review shows as follows:. Plaintiff’s attorney: “Now I call on counsel to produce an alleged will spoken of by this witness. (Miss King) on her direct examination,, drawn by A. J. Gorton at that time and signed hy her.” Defendant’s attorney: “To which request' counsel remains mute,” Whereupon plaintiff’s attorney called as a witness the defendant’s attorney and questioned him as follows : Q. “ Mr. Goldsmith, have ,you in your possession a paper testified to by Miss King as having been draVn up by A. J. Gorton and signed by her? ” Defendant’s attorney : “I object to it as immaterial, irrelevant and incompetent.” ' h Objection sustained. ■ Exception.’’. Q. “ Has there been delivered to you by your client a paper purporting tó'be the will’of O’Connor.? ” “ Same objection, ruling a,nd excep- - tion.” These rulings cannot be sustained in view of the fact that 'Miss King was the sole witness as to the circumstances attending the-dying O’Connor’s gift to Gorton, and she says that Gorton at O’Connor’s' request at that time drew up what purported tq be O’Connor’s will, which was witnessed. It. must be assumed that defendant’s counsel had this paper with him in court. The plaintiff had a right to have the paper-if it was in court in order that - he might cross-examine Miss King'as to the circumstances attending the drawing up of the same and to offer it in evidence if its- contents went to show , that the deceased did not make the gift' to Gorton.; And at folio 135 the witness was asked- to state the contents of this paper purporting, to be deceased’s will, but defendant objected and was sustained.

The defendant’s attorney contends upon this appeal that- . the record does not show that any proóf of service of notice to produce this paper was made, but the record does not show ’ that he made such objection at'trial, and, moreover, if the paper was in court, and it must be assumed that' it was, no . notice to produce was necessary. The record shows other errors against plaintiff which it is not necessary to discuss.

Judgment reversed and new trial granted,- with costs .to appellant to abide the event.

¡McCarthy and Scotchman, JJ., concur.-

Judgment reversed and new trial granted, with costs to appellant to abide event.  