Kalkhoff Co. v. Russian Orthodox St. Nicholas Church

121 N.Y.S. 713

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 10, 1910
• Status: Published

Opinion

BIJUR, J.

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 his direct examination. It was, however, improper to rule out the entire so-called cross-examination, without even examining the character ■ of the questions and answers. They might have been found to constitute what was really a direct examination on new and relevant matters.

As due exception was taken to the exclusion of this testimony, the judgment is reversed, and a new trial granted with costs to appellant to abide the event. All concur.