Keller v. Morton — 63 Misc. 340

Majority

p. 340

Nathan Keller et al., Respondents, v. Bennett C. Morton, Appellant.

(Supreme Court, Appellate Term,

May, 1909.)

Headnote

Evidence — Documentary evidence — Official books and documents — Pleadings and affidavits as evidence.

Examination of witnesses — Cross-examination — Cross-examination of adverse party.

Although an amended complaint, served by leave of the court after a demurrer to the original complaint has been sustained, supersedes the original complaint as a pleading, the original complaint is, nevertheless, admissible in evidence against the pleader, and having been admitted in evidence it is error not to permit the defendant’s counsel to interrogate the plaintiff in relation to the allegations it contains.

Appeal by the defendant from a judgment entered upon the verdict of a jury in favor of the plaintiff and from an order denying a motion for a new trial, rendered in the Municipal Court of the city of ¡New York, seventh district, borough of Manhattan.

Sporborg & Canter, for appellant.

Samuel A. Berger, for respondents.

The plaintiffs, who employed the defendant as a salesman, brought this action to recover money alleged to have been advanced to the defendant in excess of eommis

p. 341

sions earned. The plaintiffs’ right to recover depended upon the terms of the contract under which they employed the defendant. The case was tried upon the issues raised by the answer to the amended complaint. A demurrer to the original complaint, on the ground that it failed to state facts sufficient to constitute a cause of action, had previously been sustained and the plaintiffs given leave to serve an amended complaint.

Upon the trial of the issues of fact counsel for the defendant attempted to examine one of the plaintiffs, who admitted having signed and sworn to the original complaint, as to an admission relating to the terms of the defendant’s employment contained in the original complaint. The learned trial justice, after declaring that the original complaint was in evidence, refused to permit counsel for defendant to read from it or to interrogate one of the plaintiffs in reference to state'ments which he had made therein. If the original complaint was to be regarded as in evidence counsel certainly had the right to read from it. The court excluded all questions propounded to the plaintiff in reference to the original complaint, stating: “ I will sustain all objections as to the original complaint. The amended complaint is the one they are suing on now.” To this ruling the defendant duly excepted.

It is true, as contended by the respondents, that an original complaint is superseded and its effect as a pleading destroyed by filing an amended complaint; but this rule in no way destroys or detracts from the effect of the original complaint as evidence, where it is otherwise competent.

The original complaint contained a declaration by the plaintiffs against interest and, as such, was clearly admissible in evidence and constituted a subject upon which the defendant might properly interrogate the plaintiff.

Tn view of the conflicting evidence as to the terms of employment, we think the exclusion of this evidence prejudicial to the defendant.

Dayton and Lehman, JJ., concur.

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