
    SARAH R. ODELL, an infant, &c., Appellant v. JUDAH H. SOLOMON, et al., Respondents.
    
      Witness, deceased; as to reading from case made on appeal Ms testimony on a former trial.—Expert testimony, what no subject of.
    
    To authorize the reading on a second trial, from the case made on appeal from the judgment entered on the first trial, the testimony of a witness since deceased, taken sténographically by the official stenographer on the first trial, it must be shown that the stenographer correctly took his evi- , deuce on the particular subject which is sought to be proved by it, and the whole of it; that the stenographic minutes were correctly written out; and that the whole of his testimony shown by the stenographic minutes thus taken, and thus correctly written out, was correctly inserted in the case on appeal.
    The question as to the possibility of a man being able to tell from exterior appearances whether a structure or part of a structure is going to fall, is not a subject of expert testimony.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
    
      Decided April 2, 1888.
    Appeal by plaintiff from judgment entered on verdict for defendants, and from order denying motion for new trial made upon the minutes.
    The facts sufficiently appear in the opinion.
    
      Alfred Pagelow, attorney and of counsel, and Emil S. Arnold of counsel for appellant, in the questions considered in the opinion, argued :
    I. The minutes of Hughes’ testimony, as contained in the printed record upon the former appeal, should have been excluded. There is no possible ground upon which the admission of this testimony can be sustained. (a) At common law the testimony of a deceased witness given upon a former trial of the same action may be proved for the same purpose for which the testimony was given by the deceased, in two ways. It may be proved by any person who will swear to the testimony from his own memory; or it may be proved by notes or minutes of the trial taken by any person who will swear to their accuracy. Jackson v. Bailey, 2 Johns. 17; White v. Kibling, 11 Ib. 128 ; Jackson v. Lawson, 15 Ib. 539 ; Clark v. Vorce, 15 Wend. 193 ; Crawford v. Loper, 25 Barb. 449; Lawson v. Jones, 61 How. Pr. 424; Huff v. Bennett, 6 N. Y. 337. Such testimony is, however, received with great caution. Crary v. Sprague, 12 Wend. 45. It was formerly held where the testimony of a deceased witness given upon a former trial is sought to be proved by a person who heard the testimony at the time, that he must repeat the precise words of the deceased, and that it was not sufficient to give the substance or effect of the testimony. The Commonwealth v. Richards, 18 Pick. (Mass.) 434; and although this rule has been modified, and it is now sufficient to state the substance of the testimony (Cornell v. Green, 10 Serg. & R. 14), he must state the substance of the whole of what was said on the particular subject which he is called to prove. If he can state only what was said on that subject by the deceased on his examination in chief, without also giving the substance of what he said upon it in his cross-examination, it is inadmissible. Greenleaf Ev. § 165; Wolf v. Wyeth, 11 Serg. & R. 149. The same rules of caution are also applicable where it is sought to prove the testimony of the deceased witness by notes or minutes of the testimony taken at the previous trial. Such notes or minutes of the testimony are not admissible as evidence per se. It must first appear that the witness is dead, that the deceased was actually sworn as a witness, and that there has been a previous trial. In addition to this, the genuineness and accuracy of the testimony must also be established by the oath of the person who took the notes; after which they maybe admitted but not before. Huff v. Bennett, 6 N. Y. 337; Crouch v. Parker, 56 Ib. 597; Clark v. Vorce, 15 Wend. 193 ; Crawford v. Loper, 25 Barb. 449 ; McIntyre v. N. Y. Central R. R. Co., 37 N. Y. 287; Martin v. Cope, 3 Abb. (Ct. of App.) 182. But the notes or minutes to be thus admitted in evidence must be the original memoranda of the testimony made by the witness and not copies. Halsey v. Sinsbaugh, 15 N. Y. 485. (b) A case prepared upon an appeal from the judgment on a former trial of the action is not competent evidence in a subsequent trial of the same case. Wheeler v. Ruckman, 35 How. Pr. 350; S. C., 7 Robt. 447; Neilson v. Columbian Ins. Co., 1 Johns. 301; Kirk v. Mowry, 24 Ohio St. 581. (c) These rules of the common law as to the testimony of a deceased witness upon a former trial of the same action have not been altered or modified by statute, and are still in full force. There is nothing in the Code of Civil Procedure upon the subject except section 830. That section relates to the .testimony of deceased parties to the action only, and not to witnesses generally. At common law the rule that the testimony given on a former trial by a witness since deceased was admissible in evidence was also applicable to the testimony given by a party to the action, Emerson v. Bleakley, 2 Abb. (Ct. of App.) 22; and the only effect of the above-mentioned section of the Code is to incorporate the common law rule into the Code in its application to parties examined as witnesses. Bradley v. Mirick, 91 N. Y. 293.
    II. The court also erred in admitting the opinion of the witness Hughes as to the ability to foretell the accident which was the cause of the injuries complained of. Greenleaf Ev. § 440; Lawson on Expert and Opinion Evidence, Rule 37, p. 203; Newell v. Wright, 3 Allen 166, 170; Teall v. Barton, 40 Barb. 137; Salter v. Utica & Black R. R. Co., 59 N. Y. 631; Higbie v. Guardian Mutual Life Ins. Co., 53 N. Y. 603; Payne v. Hodge, 7 Hun 612; affd., 71 N. Y. 598; Keller v. New York Central R. Co., 2 App. (Ct. of App.) 490; Sackett v. Spencer, 29 Barb. 180; Manke v. People, 17 Hun 410; affd., 78 N. Y. 611. Judged by the rules laid down in these cases the testimony of Hughes was inadmissible and should have been excluded. The subject of the evidence was not such as required the opinion of an expert. It was not one of special skill'or experience, but of general observation. All that he should have been allowed to testify to was the condition of the windows and sashes, which he had already done, and the jury should have been allowed to draw their own inference from those facts.
    
      Myer S. Isaacs, attorney and of counsel, and Adolph L. Sanger of counsel for respondents, on the questions considered in the opinion, argued:
    The testimony of a witness (since deceased) given upon a former trial may be read at the second trial, and may even be proved by a person who heard the testimony of the witness, notwithstanding that the original testimony was reduced to writing. 1 Whart. on Ev. § 177 ; Osborn v. Bell, 5 Den. 370; Wilbur v. Selden, 6 Cov. 162. Even the testimony of a party to the action may thus be given, or read, in evidence. Code Civ. Proc. § 830. In Clark v. Vorce, 15 Wend. 193, a witness was called upon a second trial to prove what a witness, since deceased, had testified to at the first trial. Counsel produced in cofirt, and read, the minutes of such former witness’s testimony stating that he had taken down the material part of his testimony, but not every word thereof; and such evidence was held admissible. Clark v. Vorce is cited with approval “ as a leading case ” on this question in Crawford v. Loper, 25 Barb. 454; and see Morehouse v. Morehouse, 41 Hun 146. In Van Bergen v. Ackles, 21 How. Pr. 314, the court held that after a case and exceptions has been settled and filed with the clerk of the court it may be taken prima facie in the further progress of the action, as evidence of the facts therein appearing, and the court permitted the testimony in such printed case to be read as evidence. The case was after-wards affirmed on appeal. 21 How. Pr. 317.
   By the Court.—Sedgwick, Ch. J.

The defendants had been the occupants of a store. The plaintiff had been struck by the sash of a window falling from the store, while she was upon the street passing the store. She brought this action for damages, alleging that the sash had fallen through the negligence of the defendants.

The trial below was the second trial of the issues. After the first trial an appeal had been taken in which a case had been made. Upon the present trial it was shown by defendants that a witness, examined upon the first trial, had died since then. They offered to show what was his former testimony, by reading from the case what appeared to have been his testimony. The reading was permitted under plaintiff’s objection and exception. I am of opinion that the objection should have been sustained.

The grounds upon which admissibility was placed by the argument were of different natures.

One ground was that a witness had proved that the case contained the substance of the minutes of the former trial as taken by the official stenographer and written out by him, or under his direction. There seems to be a fatal defect in this ground, because there was no proof that the minutes had been taken correctly, or themselves had been written out correctly.

Another ground was that it had been proved that the defendants had proposed a case, that the plaintiff had proposed amendments to the case, and thereafter the judge before whom the case was tried had settled it, in the form of the case offered upon the trial. I do not think that it can be inferred from the action of the plaintiff’s counsel or of the judge, that the testimony stated by the case to have been that of the witness on the first trial, was the whole of that witness’s testimony on the points that appear by the case to have been touched upon. To permit testimony of a witness upon a former trial, since dead, to be given on the after trial, it must appear that what is offered is the whole testimony given. On an appeal there is no presumption, and in this instance there was no proof that the whole testimony was necessary to be inserted in the case for the purposes of the appeal. Evén on the point of whether there should be a reversal upon the facts, repetition, incoherences, turns of phrases, self-contradictions, may have a modified construction placed upon them by the- admission of counsel or the decision of the judge, for the purpose of the the appeal, when a jury might properly give another construction. One condition of giving the former testimony of a witness is, that it was given as to the issues made upon the former trial, and identical with the issues of the second trial. When the testimony is shaped for the case, the result is that the statement of the case is as to its propriety and relevancy for an appeal.

The remaining ground is, that it Avas in the case, and that legally the case is prima facie proof of Avhat testimony was given on the trial. The same consideration, however, is to be applied, that the case Avas made not to perpetuate the testimony, but to form the material of an appeal. Of cases, Ch. J. Kent said in Elting v. Scott, (2 John. 162,) These cases are a species of testimony whiph ought not perhaps in any case to be admitted, unless when the admission is made a condition of granting a new trial, nor has it been the practice to admit them. They are generally drawn by counsel, without any communication with the parties and often with a view to bring before the court some particular point unconnected with much of the narrative part of the case, and which for that very reason, may have passed without criticism or attention.”

Under objection, the defendants’ counsel was allowed to read as part of the testimony of deceased witness the following: Even if a man went into that building in the morning he could not tell that either one of those sashes was going to fall down.”

The witness was an expert as to the proper construction of windows and sashes, the effect upon them of weather and use, and as to what would be the exterior appearance from time to time, but not I think as to the possibility of a man not being able to tell from exterior appearances, that the sash was going to fall down.

There is still a question of whether the testimony upon the present trial was not such, outside of objectionable matter, that under the former decision in this case, there was no proof of negligence of defendants. As counsel on the argument did not advert to the similarity or difference between the former and the present testimony, it is to be assumed that the present case was one for the jury.

• The judgment should be reversed as well as the order refusing a new trial, and there should be a new trial with costs to .abide the event.

Trttax, J., concurred; Dugro, J., not voting.  