Kalkhoff Co. v. Russian Orthodox St. Nicholas Church

Plaintiff read the direct examination of Rev. Alexander Hotovitsky from a deposition taken before trial on behalf of the defendant, by stipulation. As plaintiff was about to read the “cross-examination,” the court sustained defendant’s objection thereto, on the ground that plaintiff had made this witness his own, and could not, therefore, cross-examine him. Sections 881 and 911 of the Code of Civil Procedure provide that a deposition may be read in evidence by either party. In Cudlip v. The Evening Journal, 180 N. Y. 85 , 72 N. E. 925 , a deposition was taken at defendant’s instance before trial, and the direct examination was read by defendant. Upon plaintiff’s declining to read the cross-examination, defendant was allowed to read it. Objections were raised, but only to the competency of parts thereof. It would seem to follow that, if a party may read his opponent’s cross-examination of his own witness, he may certainly read his own cross-examination of his opponent’s witness after he himself has read the direct examination. Testimony taken under so-called cross-interrogatories frequently constitutes merely a direct examination, because the parties, instead of obtaining two orders and preparing two-sets of direct interrogatories, have simply taken the deposition on direct and so-called “cross” interrogatories. Marshall v. Watertown Co., 10 Hun, 463 .

The courts seem to have adopted a liberal rule in this respect regarding depositions, on the ground that a party has a right to rely on being able to read the testimony taken thereunder. Berdell v. Berdell, 86 N. Y. 519 , 521, 522. In the case at bar, defendant might have objected to such questions or answers as he considered incompetent or irrelevant, or perhaps, even, as impeaching the witness’ testimony on