p. 697John F. Whelan et al., App’lts, v. Andrew J. Gorton, Resp’t.(New York City Court, General Term,Headnote
1. Will—Production—Practice.Where, on the issue as to the validity of a gift by the testator, consisting of deposits in a savings bank, to the scrivener of his will, at the time of its execution, the only evidence in support of the gift was the testimony of a witness to the will and of the scrivener, the counsel for the party attacking the gift is entitled to the production of the alleged will, - for the purpose of cross-examining the witness as to the circumstances attending the drawing of the same, and to offer it in evidence if its contents go to show that testator did not make a gift.
Where an attorney has in his possession in court a paper admissible itt evidence, no notice on the part of the adverse party to produce it is necessary to its production.
Appeal from a judgment in favor of defendant by the court without a jury.
E. J. Dunphy, for app’lt; Goldsmith & Doherty, for resp’t.
—The plaintiffs, as administrators of one
O’Connor, deceased, sued the savings bank for funds deposited by deceased, and this defendant sought, and was allowed, to interplead instead of the bank, upon his claim that deceased, just before his death, had given and delivered to him the bank book containing these deposits. The record shows that this defendant had first brought action against the bank, making the same claim in that action that he does in this, and that, upon the trial of that first action, the fact was disclosed that the deceased had made what purported to be his will, which was witnessed by the plaintiff therein (the defendant herein). The record of the trial now under review
p. 698shows as follows: Plaintiff’s Attorney : “Now, I call on counsel to produce an alleged will, spoken of by this witness [Miss King] on her direct examination, drawn by A. J. Gorton at that time, and signed by her.’.’ Defendant’s Attorney : “To which request •counsel remains mute.” Whereupon plaintiff’s attorney called as a witness the defendant’s attorney, and questioned him, as follows: Q. “Mr. Goldsmith, have you in your possession a paper testified, to by Miss King as having been drawn up by A. J. Gorton and signed b^y her ?” Defendant’s Attorney: “I object to it, as immaterial, irrelevant, and incompetent.” .“Objection sustained. Exception.” Q. “Has there been delivered to you by your client a paper purporting to be the will of O’Connor ?” “Same objection, ruling, and exception.” These rulings cannot be sustained, in view of the fact that Miss King was the sole witness as to the circumstances attending the dying O’Connor’s gift to Gorton, and she says that Gorton, at O’Connor’s request, at that .time drew up what purported to be O’Connor’s will, which was witnessed. It must be assumed that defendant’s counsel had this paper with him in court. The plaintiff had a right to have the paper if it was in court, in order that he might cross-examine Miss King as to the circumstances attending the drawing up of the same, and to offer it in evidence if its contents 'went to show that the deceased did not make the gift to Gorton. And, at folio 185, the witness was asked to state the contents of this paper purporting to be deceased’s will, but defendant objected, and was sustained. The defendant’s attorney contends, upon this appeal, that the record does not show that any proof of service of notice to produce this paper was made; but the record does not show that -he made such objection at trial, ■and, moreover, if the paper was in court (and it must be assumed that it was), no notice to produce was necessary. The record -shows other errors against plaintiff, which it is not necessary to discuss.
Judgment reversed, and new trial granted, with costs to appellants to abide the event. All concur.