
    POTTS v. MAYER.
    [Reversing 46 Super. Ct. (J. & S.) 182.]
    
      N. Y. Court of Appeals,
    
    
      October, 1881.
    Examination of Party or Interested Witness.—Testimony of Deceased.—Reading Evidence Taken in Former Trial. —Rebuttal.
    , If, a party having reacl in his own favor the testimony of a deceased party given on a former trial of the cause, his adversary thereupon reads the cross-examination, which includes testimony to a distinct and material fact, not responsive to the part read by the former, the former is not then precluded, by section 39 of the Code of Civil Procedure, from testifying himself as to such fact, although it be a personal transaction or communication with the deceased. 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 tiiat 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.
    Frederick A. Potts sued Isaac Mayer, Elkin Hyman and Sigismund Kokn, on a promissory note made by the defendants Hyman and Mayer to the order of themselves, and indorsed by Kohn. After judgment, against Hyman, plaintiff proceeded (under Code Pro. § 375) against Mayer by summoning him to show cause why he should not be bound by the judgment as if he had been originally served. Mayer answered, setting up in substance that the note was originally without consideration, and was given on the pretense that Kohn had agreed to get it discounted and pay to Hyman the excess over and above a pretended indebtedness of Hyman to Kohn ; that Kohn in fact, had agreed to have it discounted and pay the whole proceeds to Hyman ; but that he diverted the note and passed it to plaintiff without consideration.
    On the first trial, Mayer called Hyman as a witness ; and under these circumstances the testimony stated in the opinion was given.
    
      The Superior Court, at general term, affirmed judgment for plaintiff, on the ground that in their opinion the exception or saving clause in section 829 of the Code of Civil Procedure did not apply, because Hyman was Mayer’s own witness ; it would have applied only if the plaintiff upon the said question of value had been examined in his own behalf or had read the testimony of Hyman as part of his case. (Reported in 46 Super. Ct. \J. & &] 182.)
    Defendant Mayer appealed.
    
      Benj. F. Carpenter, for the appellant.
    
      Samuel Hand, for the respondent.
   Finch, J.

We think the evidence of Mayer, offered to contradict the statement of Hyman that he had 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 incomplele 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 Ms own cross-examination of the witness upon the previous trial. In that, he inquired what the witness meant by this 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 plaintiffs 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 the 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, § 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 the respondent’s argumen D in favor of excluding the proposed contradiction, but here 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 the judges concurred.  