
    McCORMACK v. MANDELBAUM.
    (Supreme Court, Appellate Division, Second Department.
    March 3, 1905.)
    Trial—Secondary Evidence—Similar Contradictory Evidence.
    Where plaintiff gave secondary evidence without objection, defendant should have been allowed to give secondary contradictory evidence.
    Appeal from Trial Term, Kings County.
    Action by John J. McCormack against Richard R. Mandelbaum. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.
    
      Argued before BARTLETT, JENKS, HOOKER, RICH, and MILLER, JJ.
    Leon Kronfeld, for appellant.
    Henry White, for respondent.
   JENKS, J.

The plaintiff simply stands in the shoes of Maryon, who testified ón his direct examination that he had a conversation with the defendant, who therein agreed to pay him 10 per cent, for certain col-. lections, “the same he would an attorney.” This testimony was taken without objection, save that the witness was permitted to refer to a memorandum. The defendant testified on direct examination that he had a conversation with Maryon regarding the employment of attorneys to collect accounts of sales made by him. He'was then asked, “Did you qr did he agreed to pay one-half of whatever the attorney charges were that you incurred?” The question was objected to as incompetent, as the agreement was reduced to writing, and the objection was sustained, unless the defendant showed a change in that agreement, un-der exception.

The record, though but a bill of exceptions, seems to indicate that the testimony of the plaintiff and the question put to the defendant refer to the same matter. When the plaintiff testified that the defendant agreed to pay him the same as an attorney, testimony by the defendant that the plaintiff was to pay one-half of the attorney’s fees presents a contradiction. The question is whether, in view of the oral evidence of the plaintiff, which went in without objection, the court erred in shutting out this testimony offered by the defendant. The question is not free from doubt, and it has been much debated, though in other courts than ours, for I do not find, nor are. we cited to, any authority in this state which is direct or conclusive. I think that the principle is well stated by Shaw, C. J., in Shaw v. Stone, 1 Cush. 228, 242. The Chief Justice says:

“This evidence was objected to on the part of Stone and others, but was admitted by the court, and this is the subject of the first objection. This objection is placed on the ground that by the vote of November 20, 1834,' and the subsequent acceptance of the report of the committee on the compensation of the agents, a contract in writing was made between the parties, which ought not to be enlarged or altered by parol evidence. To this objection there are several answers: (1) As the rules of evidence are made for the security and benefit of parties, all exceptions may be waived by mutual consent, and in each particular case an objection may be waived by the party who has a right to except. Now, when this species of evidence was offered by Stone and others in order to prove what was the agreement and understanding of the parties, even though it might have been open to the exception stated, the defendants waived their exception by offering it, and the other party waived theirs by not excepting to its admission. To what extent did this waiver go? We think to the introduction of parol evidence bearing on the same point, and which tended to prove what was, or was not, the agreement and understanding of the parties, at the time of the establishment of the agency, in regard to one important particular. It was not merely a waiver as to the particular question, but to the species of evidence as bearing upon that point in the issue. It is said that the admission of incompetent or illegal evidence on one side, not objected to, does not warrant the admission of incompetent evidence on "the other side, when objected to. This principle is true, but is not applicable to the present case. When a party waives his exception to a particular species of evidence, alike in character, it ceases to be incompetent, and all evidence of the like kind, if pertinent, is admissible. A contrary decision would seem to violate the maxim, ‘Audi alteram partem,’ which lies at the very foundation of all regulated and intelligent judicial inquiry.”

In Mowry v. Smith, 9 Allen, 67, 68, Bigelow, C. J., says:

“The question then arises, how far the admission of incompetent and irrelevant evidence offered by one party, to which no objection is taken, renders it competent for the opposite party to introduce evidence of a similar character. There certainly must be some limit beyond which parties cannot be permitted to go in extending issues of fact and bringing into a case matters which have no essential bearing on its real merits. Without indicating a general rule applicable to all cases of this nature, we think it may be safely said that a party should not be allowed to go farther, than to prove facts which have a direct tendency to contradict and control the irrelevant or incompetent evidence which his adversary has introduced into the case. To 'this extent it may be properly held that the latter has waived the strict rule of law applicable to such evidence, and is estopped from objecting to the proof of facts, by the opposite party, which can be properly deemed to be contradictory or in rebuttal of those offered by himself.”

See, too, Elliott on Evidence, § 887; Jones on Evidence, § 876; Wallis v. Randall, 81 N. Y. 164, 168. Thompson, J., pithily says in Sherwood v. Titman, 55 Pa. 77, 80:

“The defendant opened the door for the testimony, and cannot complain that it was not closed soon enough to suit him.”

This is not a question of immaterial or irrelevant evidence, but of the admission of secondary rather than the best evidence, and I think that, in view of the taking of such testimony from the plaintiff, the court should have permitted the defendant to give testimony of the same kind which went to contradict the statement of the plaintiff. The judgment should be reversed, and a new trial granted.

Judgment reversed, and new trial granted; costs to abide the event. All concur; HOOKER, J., not voting.  