
    Alfred C. Luce, App’lt, v. Thomas A. Knowlton, Resp’t.
    
      (City Court of New York, General Term,
    
    
      Filed October 15, 1891.)
    
    1. Contract—Breach—Proof.
    Defendant, contracted to deliver to plaintiff in New York 100 car loads of ice as soon as cars could be furnished. He delivered only thirty-six car loads. In an action for breach of said contract plaintiff failed to prove that any more cars were ready or obtainable and defendant testified that he did not receive any more cars and that he could not obtain any eligible for the route designated. Held, that there was a failure of proof and the complaint was properly dismissed.
    2. Evidence—Deposition taken at instance of adverse partt.
    It is error to refuse to permit the plaintiff to read the deposition of a witness taken at the instance of the defendant; but the error in this case was harmless, as it appeared on the motion for a new trial that the deposition contained no evidence supplying the failure to prove that cars were ready or obtainable.
    Appeal from judgment and order denying new trial, upon the minutes of the trial and the testimony of William H. Frost taken before John L. Brown, Esq., referee.
    
      Morris & Kennedy, for app’lt; Kneeland, Stewart & Epstein, for resp’t
   Van Wyck, J.

The complaint alleges an agreement made between March 26 and April 7th by defendant to deliver to plaintiff at New York 100 car loads of ice as soon as cars could be furnished for the same, for $3.25 per ton, and that said cars have at all times been ready to receive said ice, but that defendant failed to so deliver any part thereof except thirty-six car loads of eighteen tons each, to plaintiff’s damage of $2,000. The answer puts at issue all these allegations except the delivery of the thirty-six car loads and sets forth a counterclaim for $22.10, and the reply makes no denial but sets up new matter as a defence to the counterclaim. The plaintiff failed to clearly prove the contract as alleged and totally failed to prove that any cars were ready or obtainable for the shipment of any ice other than the thirty-six car loads received by him; and furthermore, the defendant, who was called on behalf of plaintiff, testified that he did not receive any cars at any time for the shipment of ice except what he sent to plaintiff; that there were some cars ready for him, but they were not eligible for the. route designated by plaintiff, and that he might have cars sent by other routes but not by the route designated by plaintiff.

The plaintiff’s counsel offered to read the deposition of William H. Frost, to which defendant’s counsel objected, upon the ground that it is taken by the defendant’s attorney and at the instance of the defendant, and is not binding,” and which objection was sustained and exception taken by plaintiff. The plaintiff’s case being closed, the motion of defendant to dismiss the complaint was granted and judgment directed in favor of defendant for $22.10, the amount of the counterclaim, which had not been denied by the reply, and plaintiff not having offered any evidence as to his affirmative defense to the same. The refusal to allow the plaintiff to read the deposition of William H. Frost was error, for the testimony of a witness taken at the instance of one party to an action can be read on the trial by the other party. The defendant consented that this deposition should be considered by the court upon a motion for a new trial, and the order denying a new trial recites that it was upon the minutes and this testimony denied. Whether or not this consent and recital would be such a waiver as to cure the error m refusing to allow it to be read on the trial, will be of no consequence in view of the fact that this deposition, which is a part of the case on appeal, and has been carefully examined, contains no evidence which can fill up the gap in the plaintiff’s case, that is, the failure to prove that cars were ready for or obtainable by defendant for the shipment of the ice, nor does it contain any evidence which will rebut the positive and affirmative testimony of defendant, when called on behalf of plaintiff, that no cars were ready, and that he could not obtain cars eligible for the route designated by plaintiff. The plaintiff failed to prove his case, even though this deposition is read as a part of it, and hence his complaint should be dismissed, and the direction of judgment for the counterclaim is proper, as the same was not denied and plaintiff made no proof of his alleged affirmative defense to the same.

Judgment and order denying new trial affirmed, with costs.

Newburger, J., concurs.  