67 N.Y. 394 | NY | 1876
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Whether the respondent should be deprived of the benefit of the testimony of the defendant Samuel Wood, examined de bene esse
as a witness in his behalf, for the reason that the adverse party has lost the opportunity of a full examination, should be determined at the trial, where an exception can be taken, rather than upon an interlocutory motion. The deposition may, in the discretion of the court, be suppressed, on motion in advance of the trial, if the case falls within the principle, that when an opportunity to cross-examine a witness has been lost through the misconduct of the witness or the fault or omission of the party calling him, or any other like cause, the deposition should be set aside or the whole testimony should be rejected. (Forrest
v. Kissam, 7 Hill, 463.) Mere formal defects or irregularities in the examination of a witness out of court or upon commission, will be disregarded upon the trial; but any matter of substance affecting the rights of the parties, and especially any act of the party or of the witness, by which the party is deprived of the valuable right of cross-examination, will be good reason for rejecting the evidence. (Forrest v. Kissam, supra; Rust v.Eckler,
The order of the General and Special Terms must be reversed, and the proceedings remitted to the Supreme Court, to the end that it may proceed and consider the application on its merits.
All concur; MILLER, J., in result.
Ordered accordingly.