
    In the Matter of Proving the Last Will and Testament of Mary Oates, Deceased, as a Will of Real and Personal Property. John T. Oates, Contestant, Appellant; John Macklin, Petitioner, Respondent.
    Second Department,
    February 28, 1916.
    Evidence — witness — denial of prior statement contrary to testimony — right to rebut testimony of witness.
    Where, in probate proceedings, a subscribing witness having given his opinion that a testatrix was of unsound mind denied that at a specified time and place he expressed a contrary opinion to a certain person, it is reversible error for the court to exclude the testimony of said person offered to rebut the testimony of the subscribing witness.
    Appeal by John T. Oates, contestant, from a decree of the Surrogate’s Court of the county of Richmond, entered in the office of said Surrogate’s Court on the 24th day of April, 1915, admitting to probate the will of Mary Oates, deceased.
    
      Richard J. Donovan [Herbert D. Cohen with him on the brief], for the appellant.
    
      John Q. Clark, for the respondent.
   Per Curiam:

A subscribing witness to the will, on the trial of the issue of testamentary capacity, gave his opinion that the testatrix was of sound mind. The contestant laid a foundation for impeachment by asking him if, at a given time and place, and in the presence of a specified person, he did not express a contrary opinion; to which inquiry he replied in the negative. The contestant then called the specified person to prove that at the time and place named, and in his presence, the subscribing wit- ' ness said that the testatrix was of unsound mind. The learned trial court excluded this evidence. In doing so it committed reversible error. (Patchin v. Astor Mutual Insurance Co., 13 N. Y. 268; Larkin v. Nassau Electric R. R. Co., 205 id. 267; Waterman v. Chicago & Alton R. Co., 82 Wis. 613, 629; Sanderson v. Nashua, 44 N. H. 492, 494; Greenl. Ev. [15th ed.] § 449, p. 596.)

The decree of the Surrogate’s Court of Richmond county should be reversed, and a new trial ordered, costs to abide the event.

Jenks, P. J., Thomas, Stapleton, Mills and Putnam, JJ., concurred.

Decree of the Surrogate’s Court of Richmond county reversed, and new trial ordered, costs.to abide the event.  