Wallach v. Manhattan Railway Co. — 105 A.D. 422

Majority

p. 422

Karl M. Wallach, Appellant, v. The Manhattan Railway Company and the Metropolitan Elevated Railway Company, Respondents.

Headnote

Testimony given on a former trial by an expert witness, since deceased, may' be read on a second trial — the error of its exclusion is not waived by the calling of another witness — an objection that he was not shown to be qualified is unmailing.

Section 880 of the Code of Civil Procedure, which authorizes the reading upon a new trial of the testimony of a witness who testified upon a former trial, but who has since died, applies to the testimony of a deceased expert witness, and the party who called such deceased expert is not obliged, upon the new trial, to call a living expert, nor has the judge presiding at the new trial power, in.

p. 423

his discretion, to refuse to permit the testimony of the deceased expert to be read.

If the judge presiding at the new trial refuses, over the objection and exception of the party who called the deceased expert upon the former trial, to allow the testimony of the deceased expert to be read, the excepting party does not waive such exception by calling another expert.

An objection taken by the opposing party during the reading of the testimony of the deceased expert, upon the ground that such expert had not been shown to be duly qualified, is unavailing where such objection was not taken on the former trial.

Appeal to the General Term of the Court of Common Pleas by the plaintiff, Karl M. Wallach, from a judgment of the Court of Common Pleas for the city and county of New York in favor of "the defendants, entered in the office of the clerk of the county of New York on the 9th day of March, 1895, upon the decision of the ■court, rendered after a trial at an Equity Term of said court, dismissing the complaint upon the merits.

Philip Carpenter, for the appellant.

Arthur O. Townsend, for the respondents.

This is an action by the owner of premises situated on the wesfc•erly side of Second avenue between Ninety-sixth and Ninety-seventh streets, known as Nos. 1873, 1875 and 1877, to enjoin the operation of the elevated railroad in Second avenue and for damages to the plaintiff’s easements of light, air and access. There was a former trial of the action in the Court of Common Pleas upon which a judgment in favor of the plaintiff was entered upon ,-a decision awarding him $4,370. Upon appeal the judgment was reversed by the General Term of the Common Pleas and a new trial was granted. (Wallach v. Manhattan B. Co., 40 N. Y. St. Repr. 669 .) Upon the former trial one George B. Curtis, a real ■estate broker, gave material evidence in favor of the plaintiff. - Prior to the last trial he died. After proving his death, counsel for the plaintiff proceeded to read his testimony given on the ■former trial. The preliminary testimony tending to show his ■qualifications as an expert and that he had examined the premises .and was familiar therewith, was read from the record of the former trial, and then counsel for the plaintiff read therefrom the following -question propounded to him, to wit: “ Will you state what is the

p. 424

present value of these' houses in their present condition with the railroad in front of them ? ” Thereupon counsel for the defendants-interposed the objection that the witness was not shown to be: qualified. It does not appear that such objection was taken on the former trial; and, therefore, it was not availing to the defendants, upon the new trial since by the defendants’ failure to interpose the-objection upon the former trial the plaintiff, by the death of the witness in the meantime, was deprived of the opportunity of giving-further evidence tending to qualify the witness. Moreover, we-are of opinion that the evidence did show that the witness was-qualified to testify on the subject concerning which he was-interrogated.

The defendants upon the new trial interposed the further ohjec- ' tion that the provisions of section 830 of the Code of Civil Procedure, which authorizes the reading of testimony upon a new trial of a witness who testified upon a former trial of an action but has-since died, do not authorize the reading of expert testimony, and that if they do the court is vested with discretion to refuse to permit, the reading thereof upon the ground that the party should be required to call a living expert. The objection was sustained and counsel for the plaintiff took an exception. - It does not appear that; counsel for the plaintiff offered to read other testimony of the deceased witness; but it is manifest that other material testimony was given by the witness. Counsel for the plaintiff was justified in inferring that the court intended to exclude all the testimony of the deceased witness. We are of opinion that the exclusion off the evidence was error which requires a reversal of the judgment. The court has no discretion to refuse to permit a party to read the: testimony of a deceased witness. The statute gives the party the absolute right to read such testimony upon a new trial. The party has a right to select his own witnesses and it is not the province of opposing counsel nor of the court to dictate to him in this regard. Had the court permitted the reading of this evidence, the opinion, of the witness and the reasons assigned therefor might have been so convincing that, instead of dismissing the complaint upon the: ground that the plaintiff sustained no damages, the court would have reached the conclusion that the plaintiff was entitled to recover damages.

p. 425

It is further urged that the plaintiff waived this exception by-calling another expert. This claim of waiver is based upon the theory that it is the practice of the trial court to permit only one expert on a side to be called in these cases. The plaintiff was not obliged, for the purpose of saving his legal right to the benefit of this exception, to abandon the introduction of further evidence. Being deprived, by an erroneous ruling of the court, of the evidence to which he was legally entitled, he was at liberty to offer such further evidence as might be at hand and in case of an adverse decision upon the merits to urge the exception.

For this error, therefore, and without considering the other exceptions urged or the merits of the decision upon the evidence adduced, the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson, O’Brien and Hatch, JJ., concurred.

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