Corning v. Walker (100 N.Y. 547, 1885)

Miller, J.

No error was committed by the referee in the exclusion of evidence of defendant’s arrangement with Erastus Corning Sr., as to the terms under which defendant received the moneys for which the recovery was had in this action.

The evidence offered involved a personal transaction between the defendant and a deceased person and clearly came within the prohibition contained in section 829 of the Code of Civil Procedure. The plaintiff had offered in evidence the books of account of the old firm and of the corporation. The plaintiff had testified that neither lie nor the company ever authorizd any money to be advanced to the defendant by way of payment for his services. Upon a cross-examination by the.defendant’s counsel the plaintiff had also testified, among other things, “ I know there could have been no arrangement between defendant and the late Erastus Corning as to payment for defendant’s services, from what Mr. Corning told me, and I had entire charge of his business.’ ’ It is claimed that what plaintiff testified to on the cross-examination was necessary to explain what he had previously testified to bn his direct examination, and hence the evidence offered was competent. We think the testimony offered was not competent on any such ground-The defendant was not required to examine the witness in order to explain his testimony upon the direct examination, by introducing evidence as to the declarations of Mr. Corning Sr., and by doing so did not open the door to the introduction of conversations had by him with a deceased person. Even if it may be assumed that this testimony related to the same subject in regard to which the plaintiff had given evidence, it was not given by the plaintiff in his own behalf so as to authorize a contradiction of the same. It was drawn out on a cross-examination by the defendant’s counsel and cannot therefore be considered to have been given on behalf of the plaintiff and for that reason could not properly be contradicted. There is no rule which authorizes a party to contradict evidence given by his adversary, as to a transaction with a deceased person, which he has himself introduced, and the Code does not provide for any such case. The testimony being introduced by the defendant himself he was not authorized to contradict it by showing an interview with a deceased party in relation to the same subject.

It may be added that it is not apparent that the introduction of the books of the firm in connection with the testimony given by Erastus Corning,