
    William C. Hackstaff et al., as Executors, etc., Resp’ts, v. Charles L. Hackstaff, App’lt.
    
      {Supreme Court, General Term, First Department,
    
    
      Filed November 16, 1894.)
    
    Witness—Section 829 op Code.
    Where a party examines the adverse party as to a conversation with the decedent, the latter party may, in his own behalf, give such conversation in full.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    
      C. A. de Gorsdorff, for pl’ffs; Charles Be Hart Brower, for def’t.
   Parker, J.

A careful examination of the evidence satisfies us that the trial court did not err in directing a verdict for the plaintiffs upon the evidence as it stood at the close of the trial. But several exceptions were taken to the refusal of the court to allow' the defendant to testify fully on re-direct examination concerning certain conversations had with the deceased, about which inquiry was made of the defendant on cross-examination.

The ground of the objection was that the evidence was inadmissible under § 829 of the Code of Civil Procedure. So it would have been, had not the plaintiffs opened the door for its admission by inquiries of tire defendant in respect to it on his cross-examination. The sum in controversy was $4,491.78. The plaintiffs, as executors of Anna G. Hackstaff, claimed that these moneys belonged to her estate; defendant, that she had given them to him in her lifetime. These moneys, with others, were collected by the defendant from tenants of Mrs. Hackstaff during a period of years with her consent. Apparently for the purpose of showing a retention of control over the moneys by the decedent, and thus negativing defendant’s claim that he held them as a gift, defendant was asked by the plaintiffs on cross-examination whether his mother knew of the account he had in trust for her in the Seamen’s Bank, and whether she kept track of the deposits made in defendant’s name in trust for her in such bank. Inquiry was also made about conversations between the decedent and witness relating to the payment of taxes on her property, and the saving of money for that purpose. Other subjects of conversation between them, tending in the same general direction, were inquired about, but those already referred to will sufficiently present the error into which we think the trial court fell. It should be said that counsel insists that the testimony to which we have referred was volunteered by the witness. If such were the fact, it is not disclosed by the record, which we must assume to be correct. The inquiries to which we have referred entitled the defendant to call out the whole of the conversations thus referred to. Nay v. Curley, 113 N. Y. 575; 23 St. Rep. 496. The defendant attempted to bring out the conversations in full by the following questions: “Q. You were asked on cross-examination in regard to having advised your mother as to the accounts in trust for her. What conversations did you have, if any, with your mother in reference to the accounts in trust? ”

“Q. What conversation, if any, did you have with your mother in reference to saving up taxes from the Church street rents?”

They were severally excluded, and the exceptions taken to the rulings require a reversal of the judgment, for the court cannot know but that the answers, if given, might have had a very important, perhaps a controlling, influence upon the question in issue between the parties.

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

All concur.  