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which were excluded, would not be of sufficient consequence to the plaintin to show prejudicial error, but the exclusion of the whole series of questions pertaining to the issues presented for determination, including that which might show that the gripman was not attentive to his duty, can scarcely help but work prejudicial harm to the plaintiff's case." Willsen v. Met. St. Ry. Co., 80 App. Div. 98, 80 N. Y. Supp. 413.
It is thus apparent that the holding of the court proceeded mainly upon the ground that error was committed in excluding the answer to a single question, and, had that been answered, as it related to the vital question in the case, the court would evidently not have regarded the other rulings as presenting error calling for a reversal of the judgment. They were considered, however, in aggravation of the ruling which was deemed to be clearly erroneous. An examination of the present record shows with considerable clearness that the question of defendant's negligence is one of much doubt. Indeed, had the testimony of Julius Willsen, Jr., an older brother of the deceased, and in whose charge the deceased was at the time, been accepted by the jury, no recoverv could have been had. He was upon the sidewalk in front of the house, and testified:
"As I turned around I seen him [the deceased) running slowly towards the car track, and he stumbled over a rock, and he tried to pick himself up, and he fell down again; and by the time he reached the track the car was six or seven feet away from him. And the car hit him-slid him over."
This testimony would seem to show that the accident was unavoidable.
The testimony offered by the defendant tended strongly to controvert every element which was essential to establish the plaintiff's cause of action. The record presents a case, therefore, which requires that care should be taken in seeing that no error prejudicial to the defendant has crept into the case, and, in view of the close margin upon which liability can rest, slight error will be regarded as prejudicial, even though it would not be so held, were the case abundantly established by satisfactory evidence.
After the second trial, the gripman, who had been sworn upon both trials, died, and the defendant asked leave to read the testimony of such witness given on the second trial. Plaintiff's counsel objected to such testimony upon the ground that he had had no proper opportunity to cross-examine the witness upon such testimony, and offered to permit the witness' testimony as given upon the first trial to be read. The court sustained the objection, and ruled that the testimony given by the witness upon the second trial could not be allowed to be read, for the reason that a free cross-examination was not permitted. To this ruling the defendant excepted. Thereafter, in the course of the trial, the defendant stated:
“I offer in evidence four questions, and the answers to them, that were put to this motorman, McCord, on the second trial, in November, 1901, and with respect to which the counsel for the plaintiff had full opportunity to cross-examine."
The plaintiff objected, and the court stated: "I have already ruled, and sustained your objection. I sustain your objection."
and 122 New York State Reporter Defendant's counsel thereupon asked to read the questions. Objection was interposed. The court sustained the objection, holding that the question was already covered by his previous rulings, to which defendant's counsel excepted.
Testimony of a deceased witness given upon a former trial is entitled to be read in evidence by virtue of the provisions of section 830 of the Code of Civil Procedure. In construing this section, the Court of Appeals, through Martin, J., said:
"The fundamental ground upon which evidence given by a witness who afterwards dies may be read in evidence on a subsequent trial is that it was taken in an action or proceeding where the parties against whom it is offered, or their privies, have had both the right and the opportunity to cross-examine the witness as to the statement offered.” Young v. Valentine, 177 N. Y. 347, 69 N. E. 643.
And this rule was reiterated in Taft v. Little, 178 N. Y. 127, 70 N. E. 211. The admission of testimony of this character is doubtless to be carefully restricted to the extent to which the right of crossexamination has been given, yet it is the evident purpose of the provision to permit such testimony to be read where reasonable right has been given, and the opportunity of cross-examination has been permitted to be reasonably exercised. While it is true that as to incidental statements injected into an examination, with respect to which the parties have no right of cross-examination, or where the opportunity was denied in respect of a material matter, the right to read the testimony will not exist. The subject, however, while carefully guarded, is nevertheless to be so administered as to save the right where the reasonable right and reasonable opportunity have been given. An immaterial error, which the court can see does not affect the substantial rights of the parties, will not be permitted to work a denial of the right to read the testimony.
In the present case we are of opinion, with the exception of the one question to which we have already called attention, that the plaintiff had a reasonable opportunity of cross-examination. The defendant would have been entitled to read, in the main, the whole of the testimony, aside from the matter to which such question related. As to the single question, however, the opportunity was denied, and upon such subject the learned court was clearly correct in its ruling. As to the testimony, however, which had been given, and upon which defendant had the unrestricted right to cross-examine, it was clearly competent. The erroneous ruling in failing to give free opportunity for cross-examination could have no effect upon the testimony offered wherein there had been no limitation in the right to cross-examine. Under such circumstances, the testimony was not so connected with the error as to form a part of it, and the defendant was entitled to read it in evidence, and have it considered in manner the same as though the right had in all respects been unrestricted.
The offer of the defendant was to read four questions and their answers, in respect of which the plaintiff not only had the right of crossexamination, but he fully and completely exercised it. Consequently there was no basis for the objection to such testimony, as it fell squarely within the rule. The examination in chief of the witness
McCord embraced a variety of matters which were pertinent to and connected with the subject-matter of the action. Such testimony was competent and material, and upon these subjects the right of crossexamination was unrestricted. Nor was such testimony connected with, nor did it bear upon, the particular matter in which the crossexamination had been limited. Consequently there was no basis for the exclusion of such testimony upon the ground that the right of free and full cross-examination had been restricted, for such is not the fact, and the defendant became entitled to read such evidence with the same force and effect as he was permitted to read the testimony given upon the first trial. It was error, therefore, to exclude the questions and answers which the defendant offered to read; and, as such ruling may have prejudiced the defendant, it constitutes reversible error. Holcomb v. Holcomb, 20 Hun, 156, affirmed on appeal 95 N. Y. 316; People v. Strait, 154 N. Y. 165, 47 N. E. 1090.
For this error the judgment and order must be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur, except O'BRIEN, J., who dissents.
PEOPLE ex rel. DONOHER v. GREENE, Police Com'r. (Supreme Court, Appellate Division, First Department. June 10, 1904.) 1. GREATER NEW YORK CIIARTER-APPLICATION-POLICE DEPARTMENT.
Greater New York Revised Charter, $ 290 (Laws 1901, p. 122, c. 466), providing that the police commissioner shall maintain a central office bureau of detectives, and that the officers theretofore assigned to what is known as the "headquarters squad," and who should be acting there. on on April 1, 1901, should be known as "detective sergeants," and should act in such borough. Held, that such section included and applied to the various borough headquarters squads, and was not limited to the head
quarters squad in the borough of Manhattan, 2. SAME-LACHES.
Where relator, after having been transferred to the Brooklyn borough headquarters squad, demanded of the police commissioner that he should thereupon be accorded the rank and grade of a detective sergeant, as authorized by Greater New York Revised Charter, $ 290 (Laws 1901, p. 122, c. 466), and within 10 days after receiving notice of the police commissioner's refusal of his demand, and while still performing the duties of his office, brought mandamus to compel such recognition, he was not
guilty of laches. 3. SAME-ESTOPPEL.
Where a policeman, after having been transferred to the Brooklyn borough headquarters squad, brought mandamus to compel the police commissioner to thereafter recognize him as a detective sergeant, as authorized by Greater New York Revised Charter, $ 290 (Laws 1901, p. 122, c. 466), the fact that between January 1, 1902, when such section went into effect, and April 28, 1903, wlien relator made his demand, he had received and receipted for his salary as a patrolman while performing duties in such headquarters squad, did not estop him from claiming his rights
under such section. 4. SAME-MANDAMUS.
Where, at the time a member of a borough headquarters squad sued to compel the police commissioner to recognize him as a detective sergeant, as authorized by Greater New York Revised Charter, $ 290 (Laws 1901, p. 122, c. 466), he was exercising the duties of his office, and his
and 122 New York State Reporter right to the office was not in issue--the only question involved being the salary to which he was entitled, and his right to the title and grade of a detective sergeant, which it was the duty of the police commissioner to accord to him under such section-he was entitled to enforce the same by mandamus.
Ingraham and McLaughlin, JJ., dissenting. Appeal from Special Term, New York County.
Mandamus by the people, on relation of Daniel F. Donoher, against Francis V. Greene, as police commissioner of the city of New York. From an order granting relator's application for a peremptory writ, defendant appeals. Affirmed.
Argued before HATCH, McLAUGHLIN, O'BRIEN, INGRAHAM, and LAUGHLIN, JJ.
Terence Farley, for appellant.
HATCH, J. The relator, Daniel F. Donoher, is a member of the police force of the city of New York, and has been for a number of years past. On the 15th day of July, 1901, he was assigned to the Brooklyn borough headquarters squad for the performance of detective duty, and has been continuously attached to said squad from that time to the time of filing his petition, which bears date the 7th day of May, 1903, and during this period he was required to, and has, performed detective duty therein. On the 28th day of April, 1903, the relator made demand upon the defendant, the police commissioner, that he be recognized as a detective sergeant on the police force of the police department, and be accorded all the rights, privileges, and emoluments belonging to such rank and grade, which demand the police commissioner denied; and, upon such refusal, this proceeding was instituted, which asks for a peremptory writ of mandamus commanding the defendant herein to forth with grade and recognize the relator as a detective sergeant on the police force of the police department of the city of New York, and to accord to him all the rights and privileges thereunto appertaining. The court made an order requiring the defendant to grade and recognize the relator as a detective sergeant of police of the police department of the city of New York, and forthwith to grant him all the rights, privileges, and emoluments belonging to the rank of a detective sergeant of police in the police department of the city of New York. From that order this appeal is taken,
The contention that the provisions of section 290 of the revised charter of the city of New York apply only to the headquarters squad in the borough of Manhattan cannot be sustained. Laws 1901, p. 122, c. 466. This court, in People ex rel. Finn v. Greene, 87 App. Div. 346, 84 N. Y. Supp. 565, held that the provisions of this section of the charter apply equally to assignments of patrolmen to perform duty in the headquarters squad in the borough of Brooklyn as to an assignment to the headquarters squad in the borough of Manhattan. Such assignment carried with it, and entitled the relator to receive, all of the benefits for which the act provided. In many essential matters this case is like the Finn Case. It differs from it, however, in
a single controlling feature. Therein the relator was detached from the Brooklyn borough headquarters squad on the 25th day of April, 1902, and brought his proceeding on the 8th day of May, 1903, after he had ceased to perform duty as a detective sergeant, and this court held that he had been guilty of such laches in instituting his proceeding for reinstatement as defeated the application. In the present case the averment of the petition is that the relator was assigned to duty as a detective sergeant on the 15th day of July, 1901, has been continuously attached to such squad since that date, and is now performing detective duty in such squad. This averment is not put in issue by the return to the writ. Therein the date of the assignment is admitted, and connected with it is the further statement that the relator's "assignment was changed from that office to duty in connection with the Bertillon system in the borough of Brooklyn.” We understand from the language of the return that the duty which the relator is performing in connection with the Bertillon system, so called, is within the line of duties assigned to and performed by detective sergeants connected with the headquarters squad. It is a mere detail in the performance of duty as a detective sergeant. Consequently the return does not put in issue the facts as averred in the petition. It necessarily follows, upon this state of facts, that the question of laches is not involved in the present proceeding. The relator cannot be held guilty of laches in failing to move for a reinstatement to his assignment as detective sergeant, because he has not been removed therefrom, and is now acting in such position. On April 28, 1903, he demanded of the defendant that he be graded and recognized as a detective sergeant, and, this not being complied with, he instituted this proceeding within 10 days thereafter. There is no basis, therefore, for saying that the relator has been guilty of any laches in seeking to enforce his rights. Such question is not presented in this proceeding.
It is said, however, that he is now estopped from claiming that he is a detective sergeant, for the reason that since January 1, 1902, when the revised charter of the city of New York went into effect, he has received, accepted, and receipted for his salary as a patrolman, and by reason of such acts has waived any rights of which he was possessed. This is certainly a novel claim upon which to rest an estoppel. If the relator by his assignment secured the status of a detective sergeant in the police force of the city of New York, and he still remains therein, performing duties as such, it is clear that he is entitled to the pay attached to such grade. The fact that prior to the time when he made his demand to be recognized and graded as such, and that he be given the emoluments inuring to such position, he had not received them, cannot be held as operating to create an estoppel which forever deprived him of his right thereto. It may be that by accepting, receiving, and receipting for his pay prior to that time, he has estopped himself from demanding that he be paid a greater sum for that period of service; but with that question we are not now concerned. The problem we are now dealing with is, what is his present right, and to what is he now entitled? And the fact that heretofore he has taken a less sum than that to which his