
    Catherine Stirling, Respondent, v. Bridget Kelley, Individually and as Administratrix, etc., of Patrick Kelley, Deceased, and Others, Defendants, Impleaded with Matthias J. Kelley, Appellant.
    
      Witness — right of, to explain testimony previously given by him—when it does not involve a personal transaction with a decedent —form of question.
    
    In an action brought by an heir at law of an intestate to partition property of which the intestate died seized, one of the defendants, a son of the intestate, alleged that he and his father had been copartneis, and that the real property in question was a part of the copartnership property.
    Upon the trial it appeared that in a prior action brought to foreclose a mechanic’s lien against the property both the intestate and his son were witnesses, and that the son testified that the premises belonged to his father, and that he was working for him. The son was thereupon placed upon the stand, and after his attention had been directed to the testimony given by him in the former action he was asked if he had “anything to say in explanation of that evidence.” The question was excluded upon the ground that, as the intestate was present in court at the time the testimony in question was given, the witness was disqualified by section 829 of the Code of Civil Procedure from giving any explanation thereof.
    
      Held, that the exclusion of the explanatory evidence was erroneous, as the testimony given by the witness on the former trial involved no communication between the witness and- his father, and also because it is a general principle of evidence that when the preceding testimony of a witness has been received in evidence it is always subject to explanation by him;
    That the fact that the witness’ counsel did not indicate the character of his proposed explanation did not warrant the exclusion of the evidence.
    Appeal by the defendant, Matthias J. Kelley, from an order of the Supreme Court, made at the Erie Trial Term and entered in the office of the clerk of the county of Erie on the 10th day of May, 1902, denying said defendant’s motion to set aside the verdict of a jury in favor of the plaintiff and for a new trial made upon the minutes.
    
      Harry D. Williams, for the appellant.
    
      August Becker, for the respondent.
   Spring, J.:

The action is partition brought by one of the heirs at law of Patrick Kelley, deceased, intestate, for the division of several tracts of valuable real estate in the city of Buffalo.

The appellant, Matthias J. Kelley, a son of the decedent, answered, asserting that he and his father had been copartners in business for many years and that the real estate in question was purchased from the avails and profits of this copartnership and with the understanding that while the title was taken in the father, it was embraced within their copartnership, and that an undivided one-half thereof belonged to the son, and asked for an accounting and a partition of said lands in recognition of said copartnership. The controversy, therefore, centered around the issue as to the existence of this copartnership, and it involved a fair question of fact which was submitted to the jury upon a specific written question.

It appeared that in 1877 one Higham, a contractor, had erected a building upon the Kelley premises, and in an action to enforce a mechanic’s lien filed by him, both Kelley and his son were witnesses. The testimony given by the former upon that trial was 'received in evidence without objection, wherein he stated that he owned a part of the property in suit. The testimony given by the son in that case was also received, in which he testified that these premises belonged to his father; that the father owned the grocery and that he, the son, was working for him. The appellant was thereupon placed upon the stand, and after his attention had been directed to this testimony he was asked if he had “ anything to say in explanation of that evidence.” This was objected to and excluded upon the ground that the witness was disqualified from giving any explanation, under section 829 of the Code of Civil Procedure, as his father was present in court at the time that evience was given.

We think the objection is untenable. The testimony was given in a public trial and involved no communication between the father and the son. Beyond that, it is a general principle of evidence that when a witness’ preceding testimony or declaration has been adduced, it is always subject to explanation by him. (Nay v. Curley, 113 N. Y. 575.)

In this ease the witness may perhaps have been able to weaken the force of the damaging testimony and he was not prohibited from so doing by section 829 of the Code, unless the explanation sought involved a personal transaction or communication with the decedent. (Lewis v. Merritt, 98 N. Y. 206; Merritt v. Campbell, 79 id. 625 ; Sanford v. Sanford, 5 Lans. 486; Markell v. Benson, 55 How. Pr. 360 ; Howe & Hummel v. Sckweinberg, 4 Misc. Rep. 73; 23 N. Y. Supp. 607.)

The fact that the counsel for the appellant did not indicate the character of his proposed explanation did not warrant the exclusion of this evidence. (Hopler v. Hunter Arms Co., 64 App. Div. 80-83.)

That objection was not suggested either by court or counsel at the trial. The only criticism offered by the counsel for the plaintiff upon the trial was that the witness was incompetent under section 829 of the' Code, and that was the only ground upon which its exclusion was based.

We cannot say the exclusion of this evidence was not harmful to the appellant. The court in his charge laid much stress upon this testimony of the appellant in the case of Higham v. Kelley, wherein he stated that he was not in copartnership with his father, in the grocery business but worked for him. The court characterized these statements as “ an important bit of evidence ” and a “ strong circumstance against his contention ” upon this trial, and called .attention to. the fact that they were given under oath, commenting at considerable length upon the testimony and its importance. This testimony must, therefore, have had weight with the jury. While it may not occur to us just what satisfactory explanation could be • made to deaden the sting of this important evidence, yet appellant ought to. have been given that opportunity, within reasonable limits,, and assuming that he violated no rule of evidence.

Adams, P. J.j McLennan, Williams and Hiscock, JJ., concurred.

Order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.  