Hawkins v. Macy — 9 N.Y. Sup. Ct. 668

Majority

p. 668

GEORGE W. HAWKINS, Appellant, v. DANIEL C. MACY, Respondent.

Headnote

Testimony talcen by consent — when may be read in evidence.

Previous to a former trial, had in this action, the testimony of a witness was taken by consent, under the following stipulation: “We consent that the foregoing testimony * * be read on the trial of the above entitled actions, subject to objections as aforesaid, and also subject to the legal objections to the particular questions * * and it is hereby stipulated that either party-may

p. 669

use the foregoing testimony and exhibit, subject to said legal objections, in each of the foregoing actions, on trial.”

At the first trial the witness was present', sworn and examined. At the second, the justice refused to allow the deposition to be read in evidence, on the grounds that the party offering it was bound to prove the inability of the witness to attend on the trial, and that the stipulation applied to the first trial alone. On appeal, held, that the rejection of the evidence was error.

Appeal from a judgment in favor of the defendant, and from an order denying a motion for a new trial.

Smith & Stanbrough, for the appellant.

Strong & Spear, for the respondent.

Opinion by Barnard, P. J.

Present — Barnard, P. J., and Donohue, J.

Judgment reversed and new trial granted, costs to abide the event.