
    ALFRED H. WILMONT, Plaintiff and Appellant, v. CORNELIUS W. MESEROLE, AND OTHERS, Defendants and Respondents.
    I. EXAMINATION OF PARTIES BEFORE TRIAL AT THE INSTANCE OF THE ADVERSE PARTY.
    1. Effect of, as to a further examination at the trial.
    
      (a) Precludes such further examination at the trial on the same subject-matter by the party at whose instance the examination before trial was had, and who at the trial read such examination,
    UNLESS
    some reason or excuse is shown, such as the omission hy inapttertence to ask some questions, or prove some facts.
    Before Monell, Ch. J., and Curtis, J.
    
      Decided January 3, 1876.
    Appeal by the plaintiff from a judgment dismissing the complaint as to the defendant, Cornelius Meserole, upon the merits of the action, and further dismissing the complaint as to the remaining defendants, Washington J. Moore and Jackson M. Yauger.
    This action is brought to have certain articles of co-partnership entered into on October 31, 1872, between the plaintiff and the defendant Meserole reformed, on the ground of an omission, by defendant Meserole’s fraud, to embody their oral agreement, and also to have four several instruments relating to the dissolution of the co-partnership, and the transfer of certain of its assets, set aside as fraudulent and void, and for an accounting by each of the defendants, and for a receiver.
    The complaint further charges the defendants Moore and Yauger with having succeeded to the co-partnership business with knowledge of the plaintiff’s rights in the premises, and with intent to defraud the plaintiff.
    The answer of the defendant Meserole puts in issue the allegations of fraud and fraudulent intent, and denies that there was a mistake in the copartnership, or that they did not correctly embody the alleged oral agreement.
    The answer of the defendants Moore and Yauger denies the allegations of fraudulent intent on their part, or knowledge of the alleged rights of the plaintiff.
    
      Charles Meyer, attorney and of counsel for appellant, on the point stated in the head note, urged :
    I. It was error to exclude the further examination of the witness Washington I. Moore; evidence of knowledge of Meserole’s fraud on the part of Moore & Yauger was thereby excluded. He had been sworn without objection, after his deposition had been read. Any objection to his competency on the ground that his deposition had been previously read, should have been made before the witness was sworn. This not being done, the objection was waived, and the refusal to permit the witness to testify was error.
    II. The objection was not to the examination of the witness, but to his further examination. If competent to be examined, he was certainly to be further examined.
    III. The fact that the witness had been examined before trial, and his deposition read in evidence did not render him incompetent as a witness on the trial. 1. The Code provides that a party to an action may be examined at the instance of his adverse party under the same rules of examination as any other witness (§ 390). It is further provided that the examination may be had before trial (§ 391). The Code does not provide that the examination can be had on only one of these two occasions ; and the liberal, fair and just construction of the statute is that the examination may be had on either or both occasions (see definition of the word “either.” Webster’s Dictionary, Unabridged. Worcester’s). The policy of equity is to elicit all the facts material to the issues, to exclude none that may by any possibility shed light upon the controversy, to construe statutes conferring competency with liberality, and to that end to permit the examination of any witness where it does not clearly appear that he is incompetent. 2. Under these sections of the Code it has been held that a party may be examined by his opponent before issue joined (McVicar v. Ketchum, 4 Robt. 657), and before complaint served (Havemeyer v. Ingersoll, 12 Abb. N. S. 301). These examinations are had for the purpose of preparing the examining party’s case for trial or his complaint, and the examination is conducted with that view. It would be manifestly improper to prevent a further examination being had at the trial for the purpose of proving facts by the same witness, of which purpose it was not desirable to apprise him (he being adverse) before trial,lest this purpose might be defeated; or for the purpose of proving facts which have come to the knowledge of the examining party since the examination before trial, which may have taken place months or even years before. 3. The Code, in removing incompetency from a party intended, and its only purpose was, to obtain from him all the facts within his knowledge material to the issue (§ 390, Code). By a subsequent section, it gave cumulative means of ascertaining such facts (§ 391). This was not intended as an optional substitute for § 390, but as cumulative. Its purpose, and only purpose, was to enable a party to gain from his adversary evidence necessary for the preparation of his complaint or for trial. 4. § 392 provides, that such examination may be read by either party at the trial, but does not add “in lieu of his oral examination,” and the adoption of that means for that purpose does not prevent a further examination at the trial where the purpose is to elicit other facts material to the issues, which purpose it was not desirable to disclose to the adverse party before trial, or which purpose the examining party may not then have had.
    IV. it is discretionary with the court to allow a witness to be recalled. This was simply recalling the witness at the trial after his examination before trial. 1. The court seldom, if ever, refuses to recall a witness for further examination, and such refusal should be upon grounds of objection, rendering the further examination manifestly improper. No such grounds appear in this case. 2. The exercise of discretion against the further examination of the witness was legal error, so intimated in Romertze v. East River National Bank, 49 N. Y. 582, where the court below refused to permit a witness to be recalled for further cross-examination. The recall here being for examination-in-chief, the case is stronger. Where there is a doubt in the mind of the court as to the propriety of permitting the recall of a witness for further examination, such doubt should be in favor of the recall, lest material testimony be otherwise excluded.
    
      Wellesley M. Gage of counsel for respondents, Moore and Yauger.
   By the Court.—Curtis, J.

The case presented by the testimony of the plaintiff is one of gross imposition and fraud. He claims that his partner, the defendant Meserole, by falsely representing to him that their firm was insolvent, and about to be put in bankruptcy, and without giving him time to consult counsel, induced him to sign a dissolution of the co-partnership, and convey all the assets of the firm to him including a valuable lease, and that this was done for no other consideration than the inadequate one that Meserole would pay the debts of the firm. The plaintiff' also asks to have the articles of co-partnership reformed, alleging that by reason of the fraudulent acts of the defendant Meserole, they fail to embrace a part of the preliminary oral agreement between the parties.

The plaintiff, by his testimony, states that which, if true, appeals strongly for the interposition of a court of equity. But the judge before whom the cause was tried at the special term found, in substance, that the plaintiff’s charges of fraudulent motives and fraud on the part of the defendant Meserole, were groundless ; that there never was any oral agreement of co-partnership between the parties;that the articles of co-partnership fully expressed the intent and agreement of the parties ; and that there was no fraud on the defendant Meserole’s part in the preparation or execution of them.

He further found, that at the time of the dissolution, the co-partnership was insolvent, with liabilities to the extent of thirty-six thousand nine hundred and forty-three dollars and eighty-three cents over and above its assets, that the dissolution and transfer of plaintiff’s interest in the business, lease and other assets of the firm were drafted by an attorney employed by both parties, and in pursuance of the plaintiff’s written instructions to that effect, and that the defendant Meserole paid him a consideration of two thousand dollars.

The testimony of the plaintiff, as to the alleged fraudulent acts of his partner Meserole,is uncorroborated by other evidence, and a careful perusal discloses intrinsic difficulties and contradictions, especially in relation to the preparation of the written instructions to the attorney for the drafting of the instruments sought to be set aside. But a further examination of the voluminous case shows that plaintiff’s evidence is in conflict with that of' the defendant Meserole, and that of the attorney who prepared the instruments,and also with that of the book-keeper, Sproull, and is also in some respects, contradicted by other witnesses. In addition to this, the documentary evidence sustains the defendants case.

Under these circumstances, it is not easy to see how the learned judge at special term, whose decision we are asked to review, could have arrived at any other conclusion than one in the defendant’s favor.

The plaintiff excepted to a ruling of the court sustaining an objection to his further examining the defendant Moore. The plaintiff had exercised his option to examine the defendant, pursuant to § 390 of the Code, before trial. His examination and cross-examination, taken on October 15, 16, 17, 19, 20, 21, and 26, immediately preceding the trial, was read in evidence at the trial by the plaintiff, who then called him, and identified certain papers, and then proceeded to examine him as to what was said by the defendant Meserole, the witness having already been examined by the plaintiff in respect to conversations with Meserole. This was objected to, and no reason or ground being assigned by the plaintiff for a departure from the ordinary course of the examination of witnesses, or anything presented by which the court could see any occasion or propriety for repeating or renewing the examination-in-chief, the objection was properly sustained. It was not claimed by the plaintiff that this defendant had not already been fully examined upon the issues in the action, nor was it even suggested that by inadvertence some questions were omitted (Clark v. Vorce, 15 Wend. 193).

Though § 392 of the Code provides that such examination may be read by either party at the trial, and does not add the words ‘ ‘ in lieu of his oral examination,” it by no means follows that the party reading the examination has the right to an oral examination as to the same subject-matter. Such a result is at variance with the theory of the Code which was adopted by the legislature with the view of simplifying the practice and proceedings of the courts, and which is illy consonant with the idea that a plaintiff, after reading at the trial an examination of a defendant, the taking of which extended through a number of days, should then be at liberty to re-examine the witness orally as to the same subjects without showing any reason or excuse therefor.

There are other exceptions by the plaintiff taken at the trial, but none that call for a reversal of the judgment.

It is apparent that, as the plaintiff fails to establish his charges of fraud against the defendant Meserole, that the charges of fraudulently assisting him made by the plaintiff against the defendants Moore and Tauger, must fall. There is no evidence that implicates them in any fraudulent acts or designs.

The judgment appealed from should be affirmed with costs.

Monell, Ch. J., concurred.  