Nixon v. Beacon Transportation Corp.

239 A.D. 830

Opinions

Judgment in each case against defendant Beacon Transportation Corporation reversed on the law and a new trial granted, costs to abide the event. In our opinion the reading of the deposition of defendant Wilson as against the other defendant, appellant, resulted in the admission of incompetent evidence, constituting error. The provisions of sections 288, 290, 303 and 304 of the Civil Practice Act relate to two entirely different subjects: One. The examination of a party where his deposition may be read on the trial against him as being an admission against interest, as though he had made the same admission in his pleading. Such parts may be read as are deemed pertinent by the party taking the deposition, and he is not bound to read portions thereof unfavorable to him. The party examined does not become a general witness on all the facts where there are other parties defendant. Two. Witnesses who are not parties may be examined under certain prescribed conditions. Their testimony is evidence on the facts in issue if otherwise competent, for or against either party. Their depositions may be read on the trial only under the conditions specified in section 304. The sections contemplate the appearance of witnesses in court for examination and cross-examination in the presence of court and jury unless there is some substantial reason which prevents such attendance. As to his codefendant, defendant Wilson was a witness. His admissions, whether made in a pleading or on-examination, were not binding on defendant Beacon Transportation Corporation. If plaintiffs desired to take the evidence of Wilson as a witness against his codefendant, the latter was entitled to plain notice to that effect. The notice that plaintiffs were to take the deposition of Wilson as a party was not sufficient. The statute does not contemplate the rule applied in this case. It would open the door to collusion and fraud. Judgments entered in favor of defendant Wilson reversed on the law and a new trial granted, costs to abide the event. This defendant profited by the error above discussed. By the admission of bis deposition he was permitted to cast all blame upon bis codefendant, and then withdraw from the case without testifying on the witness stand and without being subjected to cross-examination. When he withdrew it prevented any evidence offered by the codefendant from affecting his liability. The interests of justice require that he should testify on the new trial in the light of his personal liability. Kapper, Hagarty and Davis, JJ., concur; Carswell, J,, with whom Young, J., concurs, dissents and votes for affirmance, with opinion.