
    THE UNION MANUFACTURING CO., Respondent, v. AARON H. BYINGTON, Appellant.
    
      Referee's report — exceptions to—evidence — morn dedm'ations of witnesses—admissibility of—depositions—memoranda.
    
    Where an exception to a ruling or direction of a referee is specific, resting on special grounds and reasons, no objection to the ruling or direction,, except those so specified, will be considered upon appeal. Upon the cross-examination of one of defendant’s witnesses, an affidavit made by the witness several years before, and which tended to contradict the evidence given by him on the trial, was presented to him by plaintiff’s counsel and he admitted the' signature to be his, and that his memory was fresher at the time it was made than at the time of his examination; plaintiff’s counsel declined to allow the defendant’s counsel to see the contents of the affidavit, and refused to put it in evidence. At a later period of the trial he offered it in evidence, and, against the objection of the defendant, it was received. Held, that this was error, as the defendant had been prevented from examining the witness concerning its contents; that, before he could be affected by the affidavit which his witness had made, without his privity or knowledge, he was entitled to show the circumstances under which it was made, the reasons existing for making it, and any other matter that might have impaired the force of its unexplained statement.
    An affidavit made by one of the plaintiff’s witnesses some years before, and corroborating the testimony given by him upon the trial, was received. Held, that this was error; that it was simply the declaration of the witness, and the fact that it was sworn to, did not render it admissible.
    Neither of the affidavits was admissible as a memorandum; each was made several years after the occurrence, not with a view of making a memorandum of it, and the witnesses themselves were able to testify from recollection on the subject to which the affidavits related. ,
    Appeal from a judgment, in favor of the plaintiff, entered upon the report of a referee.
    
      This action was brought to recover the sum of $3,131.56, and interest from May 22,1862, for a balance on goods sold and delivered to the defendant. The answer denied the purchase, and set up two counter-claims, one for commissions and the second for use and occupation of a portion of defendant’s premises for storage.
    The plaintiff replied, denying all the allegations in the answer respecting the counter-claims. The case was referred to a referee to hear and determine. The referee reported in favor of the plaintiff, not for goods sold and delivered, but for money received by him as the agent of the plaintiff, in selling the goods described in the complaint.
    
      Wm. Henry Arnoux, for the appellant.
    The referee erred in adjudging that on the pleadings and proofs, the plaintiffs were entitled to recover; the judgment must be secundum allegata et probata. (Ferguson v. Ferguson, 2 N. Y., 361; Kelsey v. Western, 2 id., 500-506; Wright v. Delafield, 25 id., 266; James v. McKernon, 6 Johns., 563; Lyon v. Tallmadge, 14 id., 516; Crocket v. Lee, 7 Wheat., 522; Woodruff v. Dickie, 31 How., 164.) The affidavit of Colonel Hathaway should not have been admitted without an opportunity to cross-examine him. (Lee v. Potter, 2 Keyes, 543; Pendleton v. Empire Stove Co., 19 N. Y., 13; Newcomb v. Griswold, 24 id., 298; Hubbard v. Briggs, 31 id., 518; Romertze v. East River N. Bank, 49 id., 577; Gaffney v. People, 50 id., 416.)
    
      Luther R. Marsh and R. Rowley, for the respondent.
   Daniels, J.:

The action was brought for the price of goods, alleged to have been sold and delivered by the plaintiff to the defendant, and the recovery had for the proceeds of goods received and sold by the defendant as the plaintiff’s agent.

This, it was insisted upon at the argument, pould not be lawfully allowed, but, as the exception taken to the referee’s direction, that the plaintiff should have judgment for the amount found to be due from him, is specific, resting on special grounds and reasons, and this objection is not among them, that point is not presented for consideration. By specifying particular objections to the recovery directed, and omitting the one so elaborately argued, the latter was necessarily excluded from the case.

During the trial the defendant claimed commissions, as such agent, for cloth claimed to have been sold by him, for the plaintiff, to the quartermaster of the State of Connecticut, for the manufacture of soldiers’ overcoats, and afterwards delivered to, and manufactured by, the firm of Day, Griswold & Co. The amount claimed for those commissions, was the sum of $1,374. The defendant’s evidence, as a witness, tended to prove the justice of this claim. He stated that the sale was made by his exertions as the plaintiff’s agent, and, if he was right in that statement, he was entitled to his commissions for making it.

John M. Hathaway was examined as a witness in the defendant’s behalf, for the purpose of sustaining the claim that the sale was made by means of his agency. During the progress of the cross-examination of this witness, an affidavit was presented to him by the plaintiff’s counsel, and he stated that the signature to it was his, and that his memory was fresher in 1864 than at the time of his examination. The plaintiff’s counsel declined, to allow the defendant’s counsel to examine or sec the contents of the affidavit, and refused to put it in evidence. At a later period in the trial, it was offered in evidence, and then objected to by the defendant, for the reasons that the plaintiff’s counsel refused to put it in' evidence when the witness was on the stand, or permit it to be examined so that the witness could be cross-examined in relation to it. The objections were overruled and the affidavit allowed to be read, to which the defendant’s counsel excepted.- This affidavit was sworn to in March, 1864, while the trial took place in November, 1869, and, in substance, it showed that the sale was not produced through the intervention of the defendant’s agency.

The objection that it was improper, under the circumstances, as a contradictory statement of the evidence given by the witness, was not taken by the defendant. But the objection that he had been prevented from examining the witness concerning its contents, because the plaintiff’s counsel withheld it while the witness was under examination, was taken, and it was an objection which the referee ought to have sustained. Before the defendant could be affected by the affidavit which his witness had made without his privity or knowledge, he was entitled to show the circumstances under which it was made, the reasons existing for making it, and any other matter that might have impaired the force of its unexplained statements. This he was deprived of, by the affidavit’s being withheld from the possession or inspection of his counsel. It was both unfair and unjust, and prevented him from availing himself of an important legal right.

Another witness was examined on the same subject, on behalf of the plaintiff, who had previously made an affidavit embodying the subject upon which he gave evidence, and that was offered by the plaintiff, and received by the referee, under the objection that the former declarations of the witness were not evidence for the plaintiff. The defendant objected to the ruling by which this affidavit was allowed to be read. The affidavit showed that the witness had sworn substantially the same in March, 1864, when it was taken, as he did upon the trial,- and his statements, on both occasions, tended to disprove the validity of the demand, made for commissions on' account of the sale of the cloth for the overcoats. This affidavit contained simply the sworn declaration of the witness who made it. It was no less so by reason of the fact that it had been sworn to by the witness. It had no claim to admissibility, because the witness had sworn to the declaration which he made.

To entitle the deposition of a witness to be read in evidence, the formalities required to be observed by positive law, must appear to be complied with, and they secure the party, to be affected by the evidence, the privilege of cross-examination. Where such provisions are disregarded, the deposition, though taken under all other formalities, is not admissible as evidence.

There is no principle on which the admission of this affidavit, as confimatory evidence of that given by the witness during the trial, can be sustained. It was simply the declaration or admission of the witness, on a preceding occasion, of what he claimed to know concerning this portion of the controversy between the parties to this action, and it derived no force, as evidence, from the circumstance of its being sworn to, because of its ex parte and informal character. But, if it did, the statement would still be liable to the objection taken upon the trial, that it consisted only of the declarations of the witness, at a time when he was not in a position to be examined, as to their accuracy, by the party whose claim was proposed to be disproved by them.

As memoranda made by the witnesses, neither affidavit was proper. Each was made several years after the occurrence, not with a view of making a mere memorandum of it, and the witnesses themselves were able to testify from recollection on the subject to which the affidavits related. The latter circumstance, of itself, was sufficient to render them improper evidence as memoranda. Both these affidavits tended to disprove the claim made by the defendant. And, as it was rejected by the referee, they must be presumed to have had their appropriate effect in producing that result.

He has, therefore, been prejudiced by the rulings of the referee, allowing them to be read. In consequence of these rulings, there must be a new trial in the action, and for that purpose, it will be unnecessary to consider the other objections taken to the conclusions of the referee.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Davis, P. J., and Westbrook, J., concurred.

Judgment reversed and new trial ordered, with costs to abide the event. 
      
       1 Greenleaf on Ev., 12th ed., 589, § 552.
     
      
       Meacham v. Pell, 51 Barb., 65 ; Russell v. Hudson River Railroad Co., 17 N. Y., 134.
     