
    David Friedman, Resp’t, v. Henry Myers, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed April 24, 1891.)
    
    Trial—Exclusion of witness—Disobedience of witness no ground FOR REFUSAL OF TESTIMONY.
    When the witnesses in a suit are ordered by the court_ to be excluded from the court room, and a witness remains in contravention of the order, it is error to refuse to permit the witness to be examined.
    Appeal from a judgment of the trial term entered on a verdict of a jury for plaintiff.
    
      A. H. Berrick, for app’lt; A. & L. Levy, for resp’t
   Newburger, J.

—This is an action brought against the defendant, one of the city marshals, for the wrongful taking of certain chattels. The defendant justifies under an extension. On the trial plaintiff recovered a verdict

The defendant appeals on the ground that the trial justice erred . in declining to allow one Mary Goldstein to testify.

It appears that at the opening of the case the defendant’s counsel asked “ that the witnesses in this case, except the parties, be ■excluded from the court room.” Plaintiff’s counsel consenting, the request was granted, and the justice ordered the witnesses to retire from the court room.

When the defendant called Mary Goldstein as a witness, the plaintiffs counsel interposed the objection that the witness had remained in the court room, and, therefore, had disobeyed the order of the court, and should not be allowed to testify. The objection was sustained and the witness was not permitted to testify, to which ruling defendant excepted.

The witness’ refusal to obey the order of the court, was undoubtedly a contempt The principal question is whether such ■contempt can deprive the defendant of the benefit of the witness’ testimony.

While it has uniformly been held that the court had the right of separating witnesses during the trial, the authorities seem to hold that the proper remedy for disobedience of the order, is to punish the offending witness, and to refer to the witness testimony, in the charge to the jury.

In Chandler v. Horne, 2 Moody & Robinson, 423, at Risi Prius, Erskine, J., said:

“ It used to be supposed that it was in the discretion of the judge, whether the witness should be examined. It is now settled and acted upon by all the judges, that the judge has no right to •exclude the witness; he may commit him for contempt, but he must be examined and it is then matter of remark that he has willfully disobeyed the order.”

In Cook v. Nethercote, 6 C. & P., 743, Alderson, B., says:

“The fact that a witness was examined after the witnesses on both sides had been ordered out of court, would be no ground for rejecting his evidence.
“ It would be only a matter of observation, respecting his testimony.”

This proposition has been cited in Beamon v. Ellice, 4 Carrington & Payne, 585; Thomas David, 7 id., 350. In Corbett v. Hudson, 1 Ellis & Blackburn, 11, the plaintiff conducted his cause in person. The lord chief justice told him that, if he addressed the jury, as an advocate, he could not be permitted to give evidence as a witness.

Lord Campbell, O. J., in delivering the opinion of the court, in granting a new trial, says:

“ We must be careful that we do not abridge the rights conferred on suitors by common or statute law, while we are acting merely on views of policy and expediency.”
“ With, respect to ordering the witnesses out of court, although this is clearly within the power of the judge, and he may fine a witness for disobeying this order, the better opinion seems to have been that his power is limited to the infliction of the fine, and that he cannot lawfully refuse to permit the examination of the witness,” and numerous authorities are cited.

The same practice seems to prevail in this country. Hubbard v. Hubbard, 7 Oregon, 47; State v. Thomas, 11 Ind., 515 ; Hey v Commonwealth, 32 Grattan (Va.), 946; State v. Sparrow, 3 Murphy (N. C.), 487; Pleasant v. State, 15 Ark., 650; Rooks v. State, 65 Ga., 331; Betts v. State, 66 id., 512; Smith v. State, 4 Lea (Tenn.), 430; Porter v. State, 2 Ind., 435.

In Parker v. State, 67 Maryland, 329, a material witness remained in the court room during the examination of the witnesses, after the court had ordered the exclusion of the witnesses on both sides from the court room. Held the court erred in refusing the witness to testify. Judge Byron in delivering the opinion of the court says: A person cannot be deprived of the benefit of a witness because of his misconduct in disobeying the order of the court.

“ All suggestions of this kind are alien to the spirit and genius of our jurisprudence.”

It seems to me thus entirely clear that the act of the witness Goldstein was one for which she alone was punishable.

It would be indeed a hardship to deprive defendant of the benefit of her testimony, which it is possible might have changed the result.

Following the reasoning of the authorities cited by me, the judgment must be reversed and new trial ordered, with costs to appellant to abide event.

Ehrlich, Ch. J., and Yan Wyck, J., concur.  