
    Edward Morley, Appellant, v. George A. Castor, Respondent.
    
      Testimony given on a tria*, adjourned hefm'e the cross-examination of a witness is completed — where the witness dies before the trial is continued his testimony cannot he used.
    
    Where, pending a trial an adjournment is granted in order that the defendant may apply to the.Special Term for an amendment to his answer, the testimony given on such trial by one of the defendant’s witnesses, whose cross-examination has been interrupted and left incomplete and who has since, died, is not admissible under section 830 of the Code of Civil Procedure. ¡
    Appeal, by the plaintiff, Edward- Morley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk, of the county of Hew York on the 21st day of May, 1900, upon the decision of the court rendered after a trial at the Hew York- Special Term dismissing the complaint upon the merits,
    The original defendants in this action were George A. Castor and Charles S. Morley. Charles S. Morley having died pending the trial, the action was prosecuted against George A. Castor alone.
    
      G. H. Crawford, for the appellant.
    
      Jesse Stearns, for the respondent.
   O’Brien, J.:

The plaintiff seeks in this action to recover from his copartners, who with him had formed the firm of George A. Castor & Company,” a share of rents and profits to which he claimed to be entitied by virtue of a written agreement entered into between the parties on October 8, 1892. It is admitted that the agreement upon which he relies was duly made, and it was conceded at the trial that the amount of one-third of such profits would be $4,984.34. The original answer set up as a defense another written agreement entered into between the parties on ¡November 23, 1896, and also alleged that from the written agreements certain omissions were made, according to which the plaintiff lost any rights to the one-third of profits which he claims. The case came on for trial, and, after the plaintiff had rested, the defendant -Charles S. Morley was called. On his cross-examination a variance between his testimony and his answer became manifest, in that it tended to show that a new and subsequent verbal agreement had been entered into between the parties. A motion to conform the answer to the proof was then made and pending when plaintiff’s counsel stated that this variance was a surprise to him, and the court said that he was entitled to an adjournment, as the answer ought to be amended. Plaintiff’s request for an adjournment was thereupon granted, with leave to the defendants to move at Special Term to amend, the case meanwhile to go back on the general calendar. Thereafter the answer was amended and the action came on again to be tried.

Meanwhile, however, Charles S. Morley, whose cross-examination was interrupted and left incomplete, had died. It was, therefore, sought upon the retrial to introduce his testimony, and, under objection and exception, it was admitted. The importance to the defendants of this testimony appears from what was said by the learned trial judge in rendering judgment, who, in speaking of the new oral agreement of January 1, 1897, set forth in the amended answer, said: “ It is claimed that this agreement was at once acted upon and carried out, and it is on this final parol agreement that the defendants rely to defeat the claim of the plaintiff in this action. This verbal agreement is denied by the plaintiff, and it is upon the question of fact whether such an agreement was made that the decision of this case must turn.” And thereafter he says: The two defendants told the same story in substance in their evidence, and I think that the testimony of the plaintiff fails to overthrow it.” Unless this testimony was competent the ruling admitting it is fatal to the judgment.

In support of the admission of this testimony of the deceased partner, our attention is directed to section 830 of the Code of Civil Procedure which provides that “ Where a party or witness has died or' become insane since' the trial of an action or the hearing upon: the merits of a special proceeding,, the testimony of the decedent or insane person * * * taken or read in evidence at the former-trial or hearing may be given or read in. evidence at a new trial or hearing,” etc. It is contended, however, that as the witness had not. completed his testimony and there had not beéii' á trial, but a mistrial, the testimony was inadmissible. This contention, we think,, should be sustained. It was not testimony, given on a trial for there: was none. Besides the examination of a witness consists not alone of the direct, blit also of the cross, and a party cannot be deprived, of the right to cross-examine his adversary’s witness.

He may waive the privilege as by defaulting on the trial, or he: may forfeit it through his fault or by not taking advantage of the= opportunity, but he cannot be deprived of or have such right taken, away.

It is here conceded that on the cross-examination of Charles S.. Morley, the witness was interrupted by the discovery that the evidence varied from the. defense pleaded, and the court was authorized upon the plaintiff’s counsel. stating that he was surprised, to-grant. an adjournment, as he did; for the purpose of enabling defendants to amend their pleading. The contention of the defendants-that the plaintiff, had lie so desired, might have Completed the. cross-examination and, therefore, it is his own fault that it was not. completed, is without merit. The .trial was interrupted to enable-defendant to apply for the amendment, and until that was granted, or denied and a new trial had, it was entirely right, to suspend, further examination of the witness. Therefore, the cross-examination was prevented and rendered incomplete by no fault of the: plaintiff. This case is not like Bradley v. Mirick (91 N. Y. 293). There it appeared that upon a former trial the defendant’s counsel, did not present- himself and the case proceeded as upon default.. The witness, therefore, was not cross-examined,, and in a subsequent trial, he having meanwhile died, the testimony taken waspürsuant to section 830 of the Code put in evidence, and it was-objected to upon the ground that the defendant had not cross-examined him on the former trial and had no opportunity to do so. It was held that the failure of the attorney to appear was a waiver of the privilege of cross-examination and that the consequences-should, therefore, fall on him and not upon his adversary. In the case at bar there was no waiver. Counsel was not bound to do that which his adversary, by a faulty or incomplete pleading, had rendered it impossible for him to do. This case, therefore, is more like'that of People v. Cole (43 N. Y. 508), wherein it was held that “ It is error to suffer to go to the jury any evidence given by a witness on direct examination for the people where, by sudden illness or by death of such witness, or other cause, without the fault of and beyond the control of the prisoner, he is deprived of his right of cross-examination.” In the present case an important and closely contested question of fact was presented for the determination of the trial judge, and in his determination, as affirmatively appears, he relied to some extent upon this testimony of the deceased which, we think, was incompetent and inadmissible. This error is of such serious import that it necessitates a reversal of the judgment and a new trial, which is accordingly ordered.

Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  