The suit was brought by Joseph Fleury, plaintiff's intestate, to recover damages for personal injuries sustained by him in a collision of automobiles, one driven by him and the other by defendant's wife. About 17 months after the accident Joseph Fleury died from his injuries and his wife as administratrix was substituted as plaintiff. Meanwhile, however, the injured man had testified at a hearing held by the State Motor Vehicle Bureau (Vehicle and Traffic Law, § 510) to determine whether driving licenses or car registrations should be revoked or cancelled as to any of the persons concerned in the misadventure. At the bureau's hearing Fleury and the present defendant were both represented by counsel and both Fleury and defendant's wife (the driver of his car) were examined and cross-examined under oath. The question now before us is as to whether, after Fleury died, his testimony at the hearing could be put into evidence by his administratrix at the trial of this personal injury suit. The two decisions by the Appellate Division, Third Department, answering that query in the negative in this case are the only directly applicable appellate determinations in this State.
When the previous (Motor Vehicle Bureau) testimony was offered by plaintiff at the first trial of the cause, it was objected to as not meeting the specifications of section 348 of the former Civil Practice Act, then in effect and reading thus: "Where a party or witness has died or become insane or, being a nonresident of this state, has departed from the state or, being a resident of the state has departed therefrom by reason of military or naval service under the state or United States, since or during the trial of an action now or hereafter pending or since or during the hearing upon the merits of a special proceeding now or hereafter pending, the testimony of the decedent or insane person or of such absentee, or of any person who is rendered incompetent by the provisions of the last section, taken or read in evidence at the former trial or hearing, or at the same trial or hearing, either in court or before the same or a new referee, together with all exhibits and documents read in evidence in connection with, or as a part of the giving of such testimony, may be given or read in evidence at a new trial or hearing or at a continuation of the same trial or hearing either in court or before the same or a new referee, or upon any subsequent
At the first trial the court took the testimony and plaintiff had a verdict and a judgment but the Appellate Division (11 A.D.2d 588) reversed and ordered a new trial, holding that the failure to meet the requirements of the Civil Practice Act forbade reception of this proof. At the retrial the same testimony was offered again and this time excluded with the result, since plaintiff had no other witnesses, that the complaint was dismissed for insufficiency of proof. The Appellate Division affirmed that dismissal and we granted leave to appeal to this court.
If section 348 of the former Civil Practice Act were the whole of the law as to the receipt of prior testimony of one who has since died, the decisions below would necessarily be correct. However, there is much in justice, in history (see Mattox v. United States, 156 U.S. 237, 240 et seq.) and in the precedents to lead us to the conclusion that the common law on the point is still applicable and that it authorizes the receipt of this earlier-taken testimony, now that Fleury is dead. There are many references in the New York cases to survival of the common
Everything seems to favor a holding that such former testimony of a now deceased witness should be taken when it was given under oath, referred to the same subject-matter, and was heard in a tribunal where the other side was represented and
All the text writers agree that whether such testimony is allowed in as an exception to the hearsay rule or whether it is not really hearsay at all (see 5 Wigmore, Evidence [3d ed.], § 1370, and McCormick, Evidence, § 230) the prime and essential requirement for its use is that it related to the same subject matter as given under oath and against the same party now contesting it with the right in the latter to have counsel present and to cross-examine (see Young v. Valentine, 177 N.Y. 347, 357; People v. Gilhooley, 108 App. Div. 234, affd. 187 N.Y. 551; People v. Qualey, 210 N.Y. 202, 210, 211; Matter of White, 2 N.Y.2d 309, supra; 1 Greenleaf, Evidence, § 164, cited in Young v. Valentine, supra; 5 Wigmore, Evidence [3d ed.], §§ 1362, 1365, 1387, 1403).
The objective of all rules of evidence is to prevent failure of justice by putting before the fact triers for testing and acceptance or rejection such oral and documentary proofs as carry a high probability of trustworthiness (vide the exception as to dying declarations, Mattox v. United States, 156 U.S. 237, 243, supra). Fair application of such standards calls for the admission of the testimony we are here concerned with and no binding rule of law prevents.
The judgment should be reversed, with costs to abide the event, and a new trial ordered.
Death prevented a key witness from appearing at the trial of this negligence action. The testimony which he had previously given under oath upon a hearing before the Deputy Commissioner of Motor Vehicles was excluded below. We are asked, in support of that ruling, to say, in effect,
The precise issue posed, therefore, is whether the Legislature, by adopting section 348 of the Civil Practice Act (now CPLR 4517), limited the power of the courts to admit this evidence. I agree with the Chief Judge that history and the statutory scheme reveal no such limitation.
New York, like most Anglo-American jurisdictions, has never adopted a comprehensive scheme of evidence. Field's proposal for a New York Code of Evidence was ignored. (See Field and Rumsey, Final Report of the New York Commissioners to Report a Code of Evidence .) Neither the Model Code of Evidence nor the Uniform Rules of Evidence have been considered for adoption by this State's Legislature, although the Advisory Committee on Practice and Procedure urged that a code of evidence, somewhat similar to those proposed in New Jersey, Kansas and Utah, be adopted. (See Second Preliminary Report of the Advisory Committee on Practice and Procedure, N. Y. Legis. Doc., 1958, No. 13, pp. 87-88; see, also, Preliminary Report of Special Committee on Evidence, Committee on Rules of Practice and Procedure of Judicial Conference of United States , 30 F. D. R. 73; Degnan, The Law of Federal Evidence Reform, 76 Harv. L. Rev. 275.)
Our statutory provisions cover only a few of the hearsay exceptions developed by the courts and recognized in New York. (Compare CPLR 4517-4518, 4520-4534 with Uniform Rules of Evidence, rules 62-66; Wigmore, Evidence [3d ed., 1940], vol. 5, §§ 1420-1684; vol. 6, §§ 1690-1810.) The fact, therefore, that the Legislature has adopted a rule sanctioning the admission
Whether prior testimony before an administrative body would have been admissible in 1879, when the predecessor of CPLR 4517 was adopted, is not significant. The common law of evidence is constantly being refashioned by the courts of this and other jurisdictions to meet the demands of modern litigation. Exceptions to the hearsay rules are being broadened and created where necessary. (See, e.g., Matter of White, 2 N.Y.2d 309; Dallas County v. Commercial Union Assur. Co., 286 F.2d 388, 395.) Absent some strong public policy or a clear act of pre-emption by the Legislature, rules of evidence should be fashioned to further, not frustrate, the truth-finding function of the courts in civil cases.
Order reversed and a new trial granted, with costs to abide the event.