Taft v. Little

• Decision Date: 22 March 1904
• Citation: 70 N.E. 211,178 N.Y. 127
• Parties: TAFT v. LITTLE.
• Court: New York Court of Appeals Court of Appeals

178 N.Y. 127

70 N.E. 211

TAFT

v.LITTLE.

Court of Appeals of New York.

March 22, 1904.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Enos N. Taft, assignee of George Riker, against William McCarty Little, individually and as executor of Augusta McCarty Little. From a judgment of the Appellate Division (79 N. Y. Supp. 507) affirming a judgment in favor of plaintiff, defendant appeals. Reversed.

Alexander Thain and Burton Thompson Beach, for appellant.

Robert Thorne, for respondent.

WERNER, J.

The plaintiff, as assignee in bankruptcy of one George Riker, recovered a judgment against the defendant, individually and as executor of his mother's estate, for labor and materials furnished by Riker for the alteration of a building then owned by the defendant and his mother, and situate at the corner of Fourth avenue and Seventeenth street, in the city of New York.

The principal question litigated upon the trial was whether the labor and materials referred to were furnished by Riker upon the direct and independent request of the defendant, or whether the former was purely the subcontractor of the principal contractors, D. C. Weeks & Son, and was to look to them for payment of his claim.

Upon this issue the referee herein found that labor and materials of the value of $2,832.29 had been furnished by Riker directly to the defendant, at the latter's request, acting for himself and his mother, and judgment was directed accordingly. This judgment was unanimously affirmed at the Appellate Division, so that the only questions open to review in this court are those arising upon exceptions taken to rulings during the course of the trial.

1. The referee excluded certain evidence given by the defendant upon a former trial, which his counsel offered to read upon the last trial. The defendant was not present at the last trial, owing to his absence from the state. The action had been previously tried, almost to completion, before another referee, who died before the case was submitted to him for decision. Upon the last trial the plaintiff was permitted to read from the record of the former trial parts of the testimony then given by the defendant, because they were claimed to be admissions against his interest. Defendant's counsel offered to read from the same record other parts of defendant's testimony, insisting that they were explanatory of the parts introduced by the plaintiff, but, upon the objections of plaintiff's counsel, they were excluded. If the testimony offered by the defendant was in fact explanatory of that introduced by the plaintiff, it was clearly competent (Matter of Chamberlain, 140 N. Y. 390, 393,35 N. E. 602,37 Am. St. Rep. 568), but the learned Appellate Division held, and we think correctly, that there is nothing in the record to show that the rejected evidence was explanatory of other evidence received at the instance of the plaintiff. Counsel for the appellant did, it is true, finally offer to read other parts of the record ‘explanatory of the questions and answers read by the other side,’ but this was followed by the reading of quite a number of questions, the answers to which are not printed in the record, and it is therefore impossible to determine whether the evidence which appellant's counsel thus sought to introduce was really explanatory or not. The ruling that appellant's counsel would be permitted to read ‘any part that gives the remainder of an answer to a question’ indicated that the learned referee took too narrow a view of the subject, but, taking into account the vagueness of the record in this respect, as well as the fact that the judgment must be reversed in any event, we simply suggest, for the guidance of the court and counsel upon another trial, that, when plaintiff's counsel had read portions of defendant's evidence on the theory that they were admissions against his interest, it was competent for the defendant to have read in his own behalf any other portion of the same evidence tending to explain such admissions.

2. Defendant insists that it was error to permit the plaintiff's witness, Riker, to testify from a paper, made many years before the trial, as to certain items of work and materials, and their value. The record discloses that the paper was a memorandum made by Riker's bookkeeper from items appearing upon his books. These items were entered from original data furnished by Riker's foreman, under the supervision of Riker, and the latter testified, not only that he had personal knowledge of their correctness, but that, after glancing at the paper, he could speak from memory. This practice was well within the settled rule permitting the use of memoranda to refresh the recollection of a witness. Wise v. Phoenix Fire Ins. Co., 101 N. Y. 637, 4 N. E. 634;Bigelow v. Hall, 91 N. Y. 145, 147;Howard v. McDonough, 77 N. Y. 592.

3. Another group of exceptions taken by the defendant relates to the reading in evidence, on behalf of the plaintiff, of certain portions of the testimony of the deceased witness, D. C. Weeks, one of the firm who had the principal contract with the defendant for the alteration of the building in question. The trial on which this witness had testified was never formally terminated, because the former referee had died before the evidence was finally submitted to him. For this reason it is claimed that the former hearing was not a trial within the meaning of section 830 of the Code of Civil Procedure, which provides: ‘Where a * * * witness has died * * * since the trial of an action, * * * the testimony of the decedent * * * taken or read in evidenceat the former trial or hearing, may be given or read in evidence at a new trial or hearing * * * by either party. * * * ’ It was admitted that on the hearing before the first referee the witness Weeks had been examined and cross-examined in the plaintiff's case, and that subsequently the defendant put in his case and rested. ‘The fundamental ground upon which evidence given by a witness, who afterwards dies, may be read in evidence...