
    Joseph Vollkommer, Respondent, v. James A. Cody and Others, Comprising the Firm of Cody Brothers, and Others, Appellants, Impleaded with the City of New York, Respondent. George Fleer and Henry Fleer, Comprising the Firm of Fleer Brothers, Respondents, v. James A. Cody and Others, Comprising the Firm of Cody Brothers, and Others, Appellants, Impleaded with the City of New York, Respondent. Andrew R. Baird, Respondent, v. James A. Cody and Others, Comprising the Firm of Cody Brothers, and Others, Appellants, Impleaded with the City of New York, Respondent.
    
      A single objection, ruling and exception covers all like evidence — exception to evidence going to the merits in an equity case — a party cannot impeach his own witness.
    
    A single objection, ruling and exception upon a question of evidence is sufficient, although not repeated, to cover all of the same class of evidence introduced upon the trial.
    
      An exception to a ruling upon a question of evidence, which, goes to the merits of the case, cannot he disregarded, even though the action he one in equity.
    Upon the trial of a judgment creditor’s action, the plaintiff called certain of the defendants as witnesses and offered in evidence their depositions taken in supplementary proceedings. The court admitted the depositions as evidence of admissions hy the parties making them, but, in disposing of the case, treated the depositions as evidence competent to impeach the testimony given by the parties making them after their depositions had been placed in evidence. .
    
      Held, that the depositions were not competent for the purpose for which they were considered by the court.
    Appeal by the defendants, James A. Cody and others, comprising the firm of Cody Brothers, and others, in each of the above-entitled actions, from a judgment of the Supreme Court, in each of the above-entitled actions, in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of November, 1902, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      Abram J. Bose [Alfred G. Petté with him on the brief], for the appellants.
    
      PEemry H. Sawyer, for the respondents Baird and Vollkommer.
   Jenks, J. :

These are judgment creditors’ actions to reach money in the Bands of the city of New York due to certain of the defendants on a judgment recovered by them against the city, which was assigned by them to the testator, whose executors are other defendants. The .ground of the action is that said assignment was made to hinder, delay and defraud creditors. The Special Term gave judgment for the plaintiff. The plaintiff called the defendant Elizabeth L. Cody as his witness, and offered in evidence her deposition taken in certain third party proceedings. This was objected to as incompetent and upon other specified grounds. The learned counsel for the plaintiff then stated that it was offered only against the defendant Elizabeth L. Cody as primary evidence of her admissions, and -the court, under exception, admitted the deposition solely on that ground. The plaintiff also offered in evidence an affidavit of the witness made in this case, which was received under objection and •exception as to its competency and materiality as against all of the ■defendants save the city of New York. Thereafter, without ■objection or exception, the examinations of the defendants James A. Cody and William J. Oody in supplementary proceedings were read in evidence.

The first objection, ruling and exception were sufficient to cover all of the same class of evidence without cumbering the record with further protests. (Dilleber v. Home Life Ins. Co., 69 N. Y. 256; Carlson v. Winterson, 147 id. 652; Lyons v. N. Y. Elevated H. R. R. Co., 26 App. Div. 57.) After the summing up by the respective counsel, the learned court, in directing judgment, said : <c It is unfortunate in this' case that there are many contradictions by the witness, Elizabeth Cody, and by her brothers in comparison with the deposition in the supplementary proceedings.” Thus it appears that the learned court considered the deposition as contradicting evidence which tended to shake its belief in the credibility of the witnesses. I am of opinion that such evidence was not competent for that purpose. (Becker v. Koch, 104 N. Y. 394, 401; Craft v. Brandow, 61 App. Div. 247.) The learned counsel for the respondents argues that admissions are always competent, and then states that the position of the appellants is that the court should have refused to receive the depositions. Hot so. The point of the appellants is that the learned court did not consider the testimony as admissions, but as evidence which was competent to impeach the witness called by the plaintiff. The learned counsel for the respondents also argues that as the depositions were admitted before the testimony of each was given, they could hot be considered as offered in contradiction, and if, after the witnesses had testified, the admissions had further force, in the mind of the court, of impeaching their credibility, that should not alter the rule as to the admissibility. The answer is that the learned counsel for the defendants protested by his objection, so far as he could, at the time the testimony was offered in evidence, and the court, irrespective of the mere order of proof, finally regarded the testimony as competent to impeach the witness. Although this is an equity case, this exception goes to the merits and," therefore, it cannot be disregarded. (Townsend v. Bell, 167 N. Y. 462.) In view of our conclusion that there must be a new trial, it is not necessary to discuss the other questions of law presented, as they are not likely to arise upon the second trial.

The judgment should be reversed and a new trial granted, costs to abide the final award of costs.

Goodrich, P. J., Bartlett, Woodward and Hooker, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.  