
    COURT OF APPEALS.
    Frederick A. Potts, respondent, agt. Isaac Mayer, impleaded with Elkin Hyman.
    
      Testimony of partyfying after trial is evidence on new trial—When parly, &e., cannot be examined— Code of Ciml Procedure, secs. 829, 831.
    When on the trial the plaintiff read in his own behalf the cross-examination of E, a deceased, party taken on a former trial, showing what had nowhere else appeared in the case, the existence of an indebtedness from the defendant M. to H., and which constituted the agreed consideration of the note :
    
      -5eld, that by this proof or the sworn declarations of the deceased, the plaintiff encountered the exception in section 829 of the Code of Civil Procedure, and exposed himself to the evidence of the defendant M. as to the same transaction.
    
      October, 1881.
    Action upon a note, dated March 3, 1874, made hy Hyman and Mayer to their own order, and by them indorsed for $1,571.39, also indorsed by Sigmund Kohn, and by him delivered to the plaintiff.
    • The answer set up that the note was made upon a representation that Hyman was indebted to Kohn in the sum of $1,200 ; that Kohn was to have the note discounted, and pay the difference between the $1,200 and the proceeds of the discount to Hyman; that there was, in truth, no indebtedness from Hyman to Kohn, but on the contrary Kohn was largely indebted to Hyman, and in fact there was no consideration for the note, and that Kohn was to have the note discounted and return the whole proceeds to Hyman. That subsequently Hyman & Mayer dissolved partnership, and that upon such dissolution, Hyman assumed and agreed to pay the partnership indebtedness. That Kohn did not have the note discounted, but passed it away for an old indebtedness to the plaintiff, and that the plaintiff was not the real party in interest.
    
      On the trial the defendant Mayer claimed and was allowed the affirmative of the issue.
    It was concluded on the trial that the plaintiff stood in no better position than Kohn.
    The defendant examined the plaintiff, and then read the evidence from printed report of former trial given by Eltin Hyman who, it was admitted, was dead.
    The proof showed that Hyman paid Mayer for the making of the note.
    After having read Hyman’s deposition proving that he gave Mayer value for the note, the defendant was called on his own , behalf, and was asked if that evidence was correct. The inquiry was objected to and excluded, and exception taken.
    
      Richa/rd S. JSfewcombe, of counsel for respondent.
    I. The defendants who held the affirmative of the issue, read the evidence of Elkin Hyman, who was one of the partners of Hyman & Mayer, and who died before this trial. In that evidence Hyman on his direct examination testified that he, Hyman, had paid his partner Mayer for the note in suit; upon that he was simply cross-examined. The proof so given was Hyman’s version of the consideration of the promissory note, and that showed that the note was made for value received. This proof having been given by the defendants, they sought afterwards to prove by Isaac Mayer ttíe surviving partner of Hyman A Mayer that the fact was different from what their witness Hyman had testified. This we say was properly excluded. 1st. Because Mayer was an incompetent witness, Hyman being dead, as to transactions between him and Hyman, under section 829 of the Code. The plaintiff derived his title through a deceased person (Hyman) and the plaintiff had not given Hyman’s testimony in evidence.' The defendant gave that in evidence, not the plaintiff.
    
    
      
       Section 830 of the Code has no application, not having been passed until several months after this trial.
    
   Fetch, J.

— We think the evidence of Mayer offered to contradict the statement of Hyman that he has paid for the note in suit was improperly excluded. The objection made to it rested upon section 829 of the Code. Hyman was a party defendant and on a former trial had been examined and cross-examined as a witness giving material evidence bearing upon the inception and consideration of the note. He died before the last trial of the case, and upon that occasion his testimony upon the former trial was read in evidence. The direct examination of the witness was read in behalf of the defendant Mayer. Among the questions asked him was what Kohn the indorser gave him for the note. The witness replied that Kohn gave him nothing, and added the statement, not at all responsive to the question, but I paid for the note to Mr. Mayer.” So far as it went this last statement was material to the plaintiff, and adverse to the theory of the defense. That theory rested upon an alleged diversion of the note from its lawful use, which could not be true if it passed to Hyman for a full and valid consideration. But the statement of the witness tending to establish this fact was not only volunteered and unresponsive, but incomplete and imperfect, since it left the allegation of payment without explanation and in a form somewhat doubtful and equivocal for the purposes of the plaintiff. The latter, realizing this fact and not choosing to leave the evidence open to doubt and criticism, thereupon read in evidence his own cross-examination of the witness as to what he meant by his statement of payment to Mayer, and thus put in evidence a distinct statement of Hyman .that Mayer was indebted to the witness in the amount of the note upon a private account between them for which consideration the note was given and received. In so doing he plainly put in evidence for his own purposes and in his own behalf material and important declarations of the deceased. By reading his cross-examination the plaintiff got the benefit of his testimony, and that testimony was given in evidence by the plaintiff, and in his own behalf. His was the only inquiry as to the particular transaction between Hyman and Mayer; the defendant having asked no questions which involved their personal dealings. When therefore the defendant sought to contradict by Mayer the evidence of Hyman as to the consideration of the note and the indebtedness upon which it was founded, and was not permitted to do so, the ruling was erroneous. The offered evidence was within the letter and spirit of the exception in the Code which permits such evidence to be given where the testimony of the deceased person is given in evidence concerning the same transaction or communication. {Code, see. 829). The obvious intention of the statute is to preserve equality and prevent unfair advantage. The mouth of the survivor is closed because the other party to the transaction is dead, and to allow the living witness to speak, secure from the contradiction or correction of his adversary is to give him an advantage manifestly unfair and dangerous to the truth. Such inequality and injustice does not exist, however, where the deceased party has spoken and his statement of a transaction is put in evidence. In that event to allow the dead man to speak through his declarations while living, and deny the right of contradiction or correction to the surviving party would shift the unfair advantage to those representing the deceased party, and it was to obviate such injustice that the exception in the statute was framed. The question is not, as the respondent states it, whether a party can put in evidence the adverse statements of a deceased party and so open the door to his own version of the same transaction. If that was in truth the question we should be very likely to feel the force of respondent’s argument in favor of excluding the proposed contradiction. But hear the plaintiff himself read in his own behalf the cross-examination of the deceased party, showing what had nowhere else appeared in the case, the existence of an indebtedness due from the defendant Mayer to Hyman, and which constituted the agreed consideration of the note. By this proof of the sworn declarations of the deceased the plaintiff encountered the exception in the Code and exposed himself to the evidence of the defendant Mayer as to the same transaction. The ruling which excluded the offered proof was therefore erroneous.

Judgment reversed, new trial granted, costs to abide the event.

All concur.  