Supreme Court, December, 1917.

[Vol. 102. material which was the subject of the examination, it appears by the affidavit of one of the counsel representing the plaintiff, who had examined the books of account in question, that they are entirely unintelligible to any one but a certified accountant or bookkeeper, and further that the books contain the details from which the results of the business may be computed and shown, but that the computation in showing such results must be made by an especially and highly qualified accountant or bookkeeper, and cannot be made by any court or lawyer without such special qualifications, and then only after many months of exhaustive labor.

The witness McKay also characterized the work which he was called upon to do by stating, under oath, that it was his opinion that it is impossible for any person, without being specially qualified as an expert accountant or expert bookkeeper, to tabulate or classify or in any way make intelligible the facts which appear from said books; that the books do not contain any inventory account or any account of profit and loss, or any account which shows the results of the business as to its profits and losses or as to any increase or decrease in inventory.

That such tabulation and classification requires special and expert knowledge and could not be done by any one without such special or expert knowledge.

At the close of the taking of the witness McKay's testimony by the direct examination of the plaintiff's counsel, counsel for the defendants entered upon a cross-examination which was general in its character, developing principally and only the general plan and scope of the work of the accountant McKay.

At the end of such oral examination counsel for the defendants stated that he had cross-examined this witness as well as he could and to the full extent of his ability, and that he objected to any further postpone

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Supreme Court, December, 1917.

ment of the hearing except for the purpose of reducing it to writing so that the witness could sign it. Counsel for the defendants insisted that the examination be closed then.

The counsel for the plaintiff asked the referee to adjourn the hearing until Thursday afternoon, October 8, 1914, for the purpose of permitting the witness to sign his testimony and for such further examination or cross-examination as might be deemed necessary.

Counsel for the defendants objected to it, insisting that under the order of the county judge of Saratoga county and of Mr. Justice Hasbrouck it be continued then, and if counsel had no further question to ask that it be closed.

The referee adjourned the hearing until Thursday, October 8, 1914, at which time the witness signed the testimony, which is certified by the referee.

On the day when McKay, the witness, signed the deposition, October eighth, he left this jurisdiction, went to Europe, joined the colors and was killed in action.

The question here presented is, shall an order issue for the suppression of the deposition of witness McKay because of the failure of opportunity to the defendants for the cross-examination of the witness.

A party litigant cannot be deprived of the opportunity to exercise his right to cross-examine a witness, who has given evidence under direct examination, except only through his own laches or waiver.

The opportunity must be afforded. The trial must be so ordered that each party may if he will exercise within bounds the right to cross-examine to the end that development may be had of the real probative force and strength of the testimony given by the witness.

The refutation by one witness of the testimony

Supreme Court, December, 1917.

[Vol. 102.

of another does not have the force as does the development on cross-examination by demonstration of improper conclusions reached by a witness whose testimony given on direct examination would otherwise possibly have been controlling.

If the opportunity to cross-examine is afforded and the party does not choose to exercise that right the consequences may fall upon him and not upon his adversary.

If a party has had an opportunity to cross-examine and declines he has had all the benefit to which he is entitled.

Starkey on Evidence says: " If a party might have had the benefit of a cross-examination in the course of a judicial proceeding it is the same thing as if he had actually availed himself of the opportunity."

The deprivation of the right to cross-examine must be the result of misconduct of the witness or party in whose behalf the testimony thus taken has been offered or because of the sickness or death of the witness.

The contention here is that the right to cross-examine the witness McKay was lost to the defendants through the alleged misconduct of the plaintiff in failing to present the testimony of the witness McKay within such time as would enable the defendants to conduct such a cross-examination as they were entitled to have.

The plaintiff insists that, because the defendants did not continue the cross-examination of the witness McKay during the few days which elapsed between the day of his examination and his departure from the jurisdiction, therefore the right of defendants has been waived and lost.

Upon the argument the plaintiff contended that if the trial had been before a jury the defendants would have been called upon to take up immediately

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Supreme Court, December, 1917.

the cross-examination and to continue the same uninterruptedly until completed.

The difficulty with that contention is that the court is here called upon to exercise in the consideration of this motion a judicial discretion, and in the exercise thereof it must be realized that this case was not on trial before a jury, but that it was such a case as the law contemplates could not be tried before a jury, and cannot be tried continuously from day to day, as the record of this case certainly emphasizes in large measure, and to an extravagant extent.

The cross-examination of a witness who testifies to a fact by reason of his hearing or seeing that which may throw light upon the subject under consideration is one thing. The cross-examination of an expert accountant, whose testimony is presented in the form of conclusions and calculations from books which no layman could understand or comprehend, from records imperfectly kept, from details not scientifically recorded, whose work, with the aid of two others, covered a period of four months, presented in the form of schedules and exhibits in great numbers and placed upon the record, is quite another thing.

In the trial of an ordinary issue, involving a question of fact, even if scientific details are interwoven, which in the trial of the issue would to a careful counsel be readily anticipated, it is quite easy to determine whether the counsel by failing to cross-examine, irrespective of what statement he makes, has waived his right.

A cross-examination of the witness McKay to have demonstrated the accuracy or inaccuracy of his conclusions, as to the story which these books of account told, as to the relation of the parties, must have been comprehensive, thorough and complete to have given to the referee that which would guide him in the deter

Supreme Court, December, 1917.

[Vol. 102. mination which he was called upon to make, to say nothing as to the rights which the defendants had, to show error in the conclusions to which the witness McKay as an expert accountant had reached.

A partial cross-examination of the witness here under consideration would have been of no avail.

The plaintiff calls to our attention the fact that an expert accountant, Hourigan, in the employ of the defendants, was familiar with the books. It is true, as appears from the papers, that Mr. Hourigan had examined the books from time to time but it cannot be said that therefore, and by reason thereof, he was familiar with the mass of detail of conclusions and of facts set forth by the witness McKay in the schedules by him presented.

The counsel for the defendants, this court well understands, must be aided in large measure in the preparation for the cross-examination of a witness such as McKay by an expert accountant who can analyze and unravel the figures in the schedules, which can only be done in connection with an examination by the expert of the books and records from which the witness McKay drew the conclusions by him reached.

This is an unfortunate situation particularly in this endless litigation. It is one, however, for which the defendants here are not responsible, and it hardly seems as if the plaintiff was responsible. It is an unfortunate episode.

We regret the expenditure of money required in the employ of the witness McKay and his assistants, if the same is lost by reason of the elimination of the testimony presented by him to the referee, but in order to save the plaintiff the money thus expended we cannot be called upon to do an injustice to the defendants.

The plaintiff's counsel knew in August that McKay would be obliged sooner or later to leave the country.