
    Morris Dickman, Appellant, v. George A. MacDonald, Respondent.
    (Supreme Court, Appellate Term,
    May, 1906.)
    Evidence — Best and secondary evidence — Distinction—Proceedings upon former trial.
    The testimony of plaintiff is primary evidence of what took place upon the trial of a former action between the same parties in his presence and hearing, and the exclusion of his testimony on that subject germane to the issue, upon the objection that it is not the best evidence, is error.
    
      Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Flew York, tenth district, borough of Manhattan.
    Moss & Feiner, for appellant.
    A. La Mont, for respondent.
   Davis, J.

The plaintiff brought this suit upon a claim for work and materials assigned to him by David Popkin. The amount sought to be recovered is thirty-seven dollars and fifty cents, and is made up of twenty-five dollars for plumbing, three dollars for polishing a boiler, one dollar for bracket and tips, fifty cents for repairing a chandelier, and eight dollars for repairing a stove. The rendition of the services and the furnishing of the materials were fully proved at the trial, the defendant offering no evidence on those items. The defendant claimed that, in a former action between the same parties in which the plaintiff recovered a judgment, the plaintiff litigated the claim here sought to be established and that, therefore, this action is barred. In support of his contention the defendant was allowed to put in evidence a so-called judgment roll in an action brought by the plaintiff here against this defendant in the eleventh district of the Municipal Court. These papers consist of a summons with its indorsement and a complaint with a notice of lien and were brought from the clerk’s office in the eleventh district. The plaintiff admitted on the stand that the items sued for in this action were part of the items for which he sued in the former action. From the so-called judgment roll it appears that plaintiff, recovered only a part of his claim as demanded in his complaint. Plaintiff then sought to show what actually was litigated at the former trial and upon what theory he recovered his former judgment. He did this with a view of proving that the claim here sued upon, though included in the complaint in the former action, could not be litigated in that action and formed no part of the judgment therein, but was withdrawn by consent before judgment. His right to do this seemed not to have been disputed. White v. Madison, 26 N. Y. 117; Bowe v. Wilkins, 105 id. 322; Doty v. Brown, 4 id. 71; Dear v. Reed, 37 Hun, 594; Campbell v. Butts, 3 N. Y. 173. But when the plaintiff sought to prove by his own testimony what took place on the former trial, he was not allowed to do so. For instance, the plaintiff was asked to give his best recollection as to what the testimony was on the former trial as to the plumbing work. This question was objected to and the objection sustained, the court stating as the ground for its ruling “ that it is necessary to produce the best evidence as to what took place on the trial of the action, and the recollection of this witness is not the best evidence.” This ruling was error. The testimony of the plaintiff as to what took place on the former trial, if it happened in his presence and hearing, is primary evidence, not secondary. His evidence is primary to the same extent as that of a stenographer who testifies as to what took place. The one testifies from recollection unaided by notes, while the other testifies from a recollection refreshed by his notes of the testimony. In sustaining this objection the court said it was necessary to produce the best evidence. This was clearly an intimation that it was necessary for the plaintiff to produce the stenographer and his minutes in order to- furnish the best evidence. While the testimony of a stenographer is primary evidence of what took place on the trial at which he was present, it is not so to the exclusion of the testimony of other persons who were present and heard what took place at the trial. Weinhandler v. Brewing Co., 46 Misc. Rep. 584. A similar error was made in excluding the testimony of Mr. Sperling, the attorney who conducted the former trial for the plaintiff. This witness was asked if he recalled that, during the course of the former trial, he moved to amend the complaint so as to withdraw the claim for plumbing work. This question was excluded over defendant’s objection. This question was followed by another of the same kind and excluded over defendant’s objection. Both of these questions should have been allowed, in order to give the plaintiff an opportunity to meet the defendant’s claim of res adjudicata. Whether or not the plaintiff’s claim is barred by the judgment on the former action is not determined on this appeal

For these reasons the judgment below should he reversed and a new trial granted, with costs to appellant to abide the event.

G-ildebsleeve and Clinch, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  