Hackstaff v. Hackstaff — 89 N.Y. Sup. Ct. 16

Majority

p. 16

William G. Hackstaff and Another, as Executors, etc., of ANNA G. Hackstaff, Deceased, Plaintiffs, v. Charles L. Hackstaff, Defendant.

Headnote

Cross-examination of a party disqualified under section 829 of the Code of Civil Procedure — his redirect examination on the same subject.

Where testimony, elicited upon the cross-examination of a witness during the trial of an action, refers in part to certain conversations of the witness with the testator of the adverse party, such witness, upon his redirect examination, may testify as to the whole of such conversations, notwithstanding the fact that, such conversations would have been inadmissible in evidence under section 829 of the Code of Civil Procedure, had he been asked to testify as to them upon his direct examination.

Motion by the defendant, Charles L. Hackstaff, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the verdict of a jury rendered by direction of the court after a trial at the New York Circuit on the 15th day of I anuary, 1894.

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O. A. de Gersdorff.for tbe plaintiffs.

Charles De Hart Brower, for tbe defendant.

A careful examination of tbe evidence satisfies ns that tbe trial court did not err in directing a verdict for tbe plaintiffs upon tbe evidence as it stood at tbe close of tbe trial. But several exceptions were taken to the refusal of tbe court to allow tbe defendant to testify fully on redirect examination concerning certain conversations bad' with tbe deceased, about which inquiry was made of tbe defendant on cross-examination.

Tbe ground of tbe objection was that tbe evidence was inadmissible under section 829 of tbe Code of Civil Procedure. So it would have been bad not tbe plaintiffs opened tbe door for its admission by inquiries of tbe defendant in respect to it on bis cross-examination.

Tbe sum in controversy was $4,491.78. The plaintiffs, as executors, of Anna G-. Hackstaff, claimed that these moneys belonged to her estate; defendant, that she bad given them to him in her lifetime. Those moneys with others were collected by tbe defendant from tenants of Mrs. Hackstaff during a period of years with her consent. Apparently for tbe purpose of showing a retention of control over tbe moneys by the decedent, and thus negativing defendant’s claim that be held them as a gift, defendant was asked by the plaintiffs on cross-examination whether bis mother knew of tbe account be bad in trust for her in the Seamen’s Bank, and whether she kept track of tbe deposits made in defendant’s name in trust for her in such bank. Inquiry was also made about conversations between tbe decedent and witness relating to tbe payment of taxes on her property, and tbe saving of money for that purpose. Other subjects of conversation between them, tending in tbe same general direction, were inquired about, but those already referred to will sufficiently present tbe error into which we .think tbe trial court fell.

It should be said that counsel insists that tbe testimony to which we have referred was volunteered by tbe witness. If such were tbe fact, it is not disclosed by the record, -which we must assume to be correct. Tbe inquiries to which we have referred entitled tbe defendant to call out tbe whole of tbe conversations thus referred

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to. (Nay v. Curley, 113 N. Y. 575 .) This defendant attempted to do by the following questions : “ Q. You were asked on cross-examination in regard to having advised your mother as to the accounts in trust for her. What conversations did you have, if any, with your mother in reference to the accounts in trust ? Q. What conversation, if any, did you have with your mother in reference to saving up money for taxes from the Church street rents ? ”

They, were severally excluded, and the exceptions taken to the rulings require a reversal of the judgment; for the court cannot know but that the answers if given might have had a very important, perhajis a controlling, influence upon the question in issue between the parties.

The judgment should be reversed and a new trial granted, with costs to the defendant to abide the event.

Van Brunt, P. J. and O’Brien, J., concurred.

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

Cases cited

Nay v. Curley 113 N. Y. 575 N.Y. 1889-06-04 p. 18