
    SUPREME COURT.
    Edward H. McDonald, appellant, agt. Mary E. Woodbury, as executrix of Henry Woodbury, deceased, respondent.
    
      Practice—Examination before trial—Death of defendant — Evidence — The testimony of a party taken at the instance of his adversa/ry is admissible in his own behalf after the death of the latter— Code of Civil Procedure, sections 870, 829 — Stipulation made between parties not vitiated by the death of defendant.
    
    'Where parties to an action have been examined before trial, each at the instance of the opposite party, under section 870 of the Code of Civil Procedure, for the purpose of assisting such opposite party to prepare for trial, and such examinations are reduced to writing and signed by the respective parties, and the defendant subsequently dies and his representative is substituted in the case, whereby the plaintiff becomes incompetent under section 829 of the Code of Civil Procedure to give testimony concerning personal transactions had with the deceased:
    
      jSeld, lsi. That the plaintiff could then prove such personal transactions by reading his previous deposition to the jury, although such deposition was taken by the defendant’s counsel for their own benefit and not for benefit of plaintiff.
    
      '2d. That it was error to dismiss the plaintiff’s complaint for lack of proof which was contained in such deposition.
    3d. That a stipulation in the action made between the parties during the lifetime of defendant was not violated by his decease.
    
      First Department, General Term,
    
    
      June, 1883.
    
      Before Davis, P. J., Brady and Daniels, JJ.
    
    Appeal from judgment dismissing complaint-
    
      Edward C. Graves, for appellant.
    
      Reuben H. Underhill, for respondent.
   Brady, J.

t appears that this action was originally agJnst Henry Woodbury, who died during its pendency. It also •appears that after issue was joined the depositions of plaintiff ¡and of Mr. Woodbury were both taken under a stipulation between the respective attorneys. The examination of the plaintiff was conducted in the nature of a cross-examination by Mr. Underhill, the defendant’s counsel, the defendant being personally present. A similar examination of the defendant was also taken and was signed, acknowledged and sworn to before a justice of this court. The defendant died and his executrix was substituted as defendant.

Upon the trial the plaintiff, being disqualified from testifying concerning his personal dealings with the deceased, offered in evidence his deposition, which was taken as already mentioned, which was excluded by the court. He then offered the deposition of the defendant, although it was against his interest, which was received and read to the jury, after which the plaintiff’s deposition was again offered and excluded. The complaint was then dismissed upon the ground that the plaintiff has not offered to carry out the contract on which his claim rests, and which seems to have been an essential prerequisite, and as to which there was testimony contained in his deposition. The question presented on this appeal, therefore, and indeed the only question presented, is whether the plaintiff’s deposition should have been admitted and read to the jury under the circumstances. The precise question has been decided by the general term of the second department in favor of the plaintiff in the case of Rice agt. Motley (24 Hun, 143). Although, perhaps, there may be some room to doubt the accuracy of this decision, yet, neverthelesss, we think the reasoning by which it is sustained is such as to justify us in concurring.

The examination of the plaintiff, as we have seen, took place in the presence of the defendant, and the cross-examination was conducted also in his presence, and the defendant had an opportunity to respond upon his examination to all the statements made by the plaintiff either upon direct or cross-examination, which it must be supposed he did, and thus- the respective parties perpetuated- their' statements in writing and in a formal way. In addition to' the provisions- of the Code relating to the subject we have in this case an express stipulation that these depositions, either or both, might be read upon the trial, and substantial justice would seem to require that the stipulations should be enforced, inasmuch as the plaintiff bj the death of the defendant is prevented from giving evidence which is essential to the maintenance of his action, and as to which the deposition is sufficient, and as to which the defendant’s evidence is also before this court.

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

Davis, P. J., and Pariels, J., concur.  