(146 N.E.) shows with reasonable clearness that the objection was understood to be based on the fact that it was a copy made after the indictment was found. It is now sought to sustain the ruling, not on that ground, but on the ground that the recollection of the witness as to the words and action of the play should first have been exhausted before a transcript of the actors' script could be admitted. a useless formality or result in obtaining evidence less reliable than could be obtained from the introduction of the transcript. As well might we refuse to receive in evidence a copy which has been compared with a lost document until the person who testified to the comparison has first exhausted his memory as to the contents of the lost document. A rule of evidence should not be permitted to become a mere fetish; the evidence offered would unquestionably be competent if a few preliminary questions had been asked of the witness as to his present recollection; been useless and could have elicited no answers that would have helped the jury. The transcript represents a record of the witness' past memory of the play more reliable as evidence than testimony based upon his present memory could possibly be, and it should therefore have been received, especially since no suggestion was made that the usual formal questions should first be asked. Perhaps only the words of the drama should have been admitted and the stage directions excluded, but no objection was made on this ground or on the ground that the prelimi The rule that the present recollection of a witness must be exhausted before a record of his past recollection may be admitted in evidence, though applied in New York and the asking of these questions would have the federal courts, has not been universally accepted or approved. There are times when the record of a past recollection, if it exists, is more trustworthy and desirable than a present recollection of greater or less vividness (Wigmore on Evidence [2d Ed.] § 738), and that is clearly the case here. The charge in the present case is that the production of the play was obscene and immoral, not that the play itself was immoral, and the testimony which was relevant upon that charge concerns rather what was said and done on the stage than what was written in the "actors' script," but it can hardly be supposed that any wit-nary questions were not asked. We do not ness would be able to remember merely from think that the defendants should have been attending a performance the exact words required to request the opposing party to that were said and which accompanied the make the objection to the testimony more gestures which it is claimed were suggestive definite, for the objection was not a mere of evil. The suggestiveness of actions or general objection, and the parties must have gestures depends in large measure upon the understood that it was based on the fact that words which accompany them. A change of a the copy was made after the indictment. Unword here or there may change the meaning der such circumstances the exclusion conand effect of a scene; an understanding of stitutes error, even if the evidence was not the meaning of a scene or play based upon at the time competent, since it could be made a study of the exact words used may be dif- so. Tooley v. Bacon, 70 N. Y. 34. We do not ferent from the meaning which would be overlook the fact that at the trial the degathered from a recital of the recollection | fendants' attorney assumed the attitude that of a witness as to a performance of the scene. he did not dispute the testimony as to The jury must form its own conclusion as to the immoral tendency of the production, at least in part, from a narration of what has occurred on the stage; yet that narration must at times be incomplete, for narration of past events based on present recollection is incomplete, and it must be colored by the impressions gathered by the witness, for all narration is so colored. It cannot have the accuracy of a photograph, yet it should be as accurate as it can be made. It is important, then, that the exact words which have been spoken should be laid before the jury. No reasonable man could suppose that the exact words could be obtained from a witness' recollection as well as they could be obtained from a transcript of the play checked up by the witness at some performance. To ask the witness whether he can remember the exact words of a whole play would be either what was said and done, but claimed that no inference of immorality should be drawn from it. We have compared the oral testimony with the transcript offered of the actors' script and we feel that the picture of what had occurred takes on in some respects a different aspect, if the words used in the transcript are substituted for the words which people's witnesses remember, and different inferences might have been drawn, if the jury had accepted as correct the transcript which was offered. [3-5] The defendants. also urge that the trial judge erred in excluding the testimony of the witnesses as to what they saw and heard at performances held after the indictment, since the evidence shows that these performances were exactly the same as during the time covered by the indictment. If such testimony had been refused, it would have been error, but we find that the evi-[ dence rejected was rather the opinion of the witnesses as to the moral value of the per formance than the narration of what the performance consisted of. The judgments should be reversed and a 1. Arbitration and award 64 - Arbitrator new trial ordered. making personal investigation, without notice to parties, held guilty of prejudicial misbehavior. ANDREWS, J. (dissenting). I dissent. It is our duty to affirm where the ruling of the Arbitrator's personal investigation, without court below is in fact right whatever the notice to parties, after close of hearings, as to ground upon which it may be placed. The whether bamboo skewers rejected by buyer exclusion of the script in his case was tech-ers' rights, within Civil Practice Act, § 1457, were salable held misbehavior, prejudicing sellsubd. 3, requiring vacation of award. nically correct. Nat. Ulster County Bank v. Madden, 114 N. Y. 280, 21 N. E. 408, 11 Am. St. Rep. 633; Russell v. Hudson River R. R. Co., 17 N. Y. 134; People v. McLaughlin, 150 N. Y. 365, 392, 44 N. E. 1017; Vicksburg & M. Railroad v. O'Brien, 119 U. S. 99, 7 S. Ct. 118, 30 L. Ed. 299; 1 Wigmore on Evidence, 835 (where the New York rule is stated); Chamberlayne on Evidence, § 3507; Jones Commentaries on Evidence, § 883; Greenleaf on Evidence, § 437; 10 Ruling Case Law, 909. A reversal in this case means that a memorandum prepared by a third party with regard to a transaction stating the words used and the actions accompanying the words may be properly received in evidence if a witness states that it correctly represents those words and actions. Here the complaint is not so much of the language of the play as of what was actually done on the stage. The script is filled with stage directions. At one place, for instance, two characters are said to embrace. At another one runs her fingers through a girl's hair and buries her face in it. Nothing could be more innocent. A description, however, of what actually occurred by witnesses for the people does or may put a different construction upon the scene. Yet we are about to say that the memorandum is evidence on this question which the jury may consider. It is very possible that had it been admitted we might refuse to reverse a judgment on that ground alone. Then we might say that the appellant should have called the attention of the trial judge to the precise objection to the evidence. Where, however, the memorandum was excluded, this rule does not apply. 2. Arbitration and award 64 - Evidence gathered without notice to parties may not be made basis of award. Arbitration Act, declaring general and executory agreements for arbitration of future differences enforceable, does not permit evinotice to be made basis of judgment, especially dence unknown to parties and gathered without in view of section 8, referring to Civil Practice Act, §§ 1451, 1457. Appeal from Supreme Court, Appellate Division, First Department. Inc., against Bela Krausz, trading as the Action by the Stefano Berizzi Company, Krausz Casing Company. From judgment on an order of the Appellate Division (208 an order of the Special Term, vacating ar App. Div. 322, 203 N. Y. S. 442), reversing bitrator's award for defendant, plaintiff appeals. Reversed, and order of Special Term affirmed. Lemuel Skidmore, of New York City, for appellant. David T. Smith, and Nicholas A. Heymsfeld, both of New York City, for respond ent. CARDOZO, J. Plaintiff agreed to sell, and defendant to buy, 8,000 cases of bamboo skewers to be shipped from China to New York. On the arrival of the skewers the buyer refused to pay for them, urging various excuses and finally defects of quality. The seller asked for arbitration in accordance with a provision of the contract that differences between the parties should be settled in that way; and upon application to the court an arbitrator was named. At the I think the judgment appealed from should hearings before the arbitrator the parties ap be affirmed. HISCOCK, C. J., and CARDOZO and peared by counsel; witnesses were called upon each side, and examined and cross-examined; a stenographer was present, and minutes were preserved. Thereafter the arbitrator made an award in favor of the defendant. Cross-motions followed, on the one side to confirm the award and on the other to vacate it. On these motions it appeared (146 N.E.) that the arbitrator, after the hearings had ry agreements for the arbitration of future been closed, proceeded without notice to the parties to make an investigation for himself. He gave samples of the skewers to his salesmen, who reported that the men to whom the samples were offered would not use them and that sales could not be made. He made inquiries for himself at important markets in New York, and learned, he says, that the skewers were unsalable and useless. It was on the strength of this personal investigation, as well as upon the testimony submitted, that his award was made. This the arbitrator concedes. Indeed, one gains the impression, when one reads his affidavit, that what he did by himself and without notice was the real basis for his decision. The Special Term upon this showing vacated the award. The Appellate Division reversed, and ordered judgment for the defendant. differences. The Legislature has said that such agreements shall be enforceable, and that the tribunal chosen by the parties shall be the tribunal for the trial. The declaration of such a policy does not call for a relaxation of restraints upon the conduct of the arbitrators in so far as those restraints have relation to the fundamentals of a trial and the primary conditions of notice and a hearing. Indeed, they are more important now than ever, if arbitration is to attain the full measure of its possibilities as an instrument of justice. The new policy does not mean that there is to be an inquisition rather than a trial, and that evidence unknown to the parties and gathered without notice may be made the basis of the judgment. If this could otherwise be doubted, there are provisions in the Arbitration Act itself by which doubt is set at rest. The Arbitration Act provides (section 8) that arbitrations had thereunder shall be subject to enumerated provisions of the Civil Practice Act so far as "practicable and consistent." One of the sections thus specifically included is section 1451, which provides that the arbitrators "must appoint a time and place for the hearing of the matters submitted to them, and must cause notice thereof to be given to each of the parties." There would be little profit in fixing a time and place of hearing, if the arbitrators were at liberty when the hearing was over to gather evidence ex parte, and rest their award upon it. Another section specifically included is section 1457, which [1] An award must be vacated "where the arbitrators were guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced." Civil Practice Act, § 1457, subd. 3; Code Civ. Proc. § 2374; 2 R. S. p. 542, § 10. We think the conduct of this arbitrator was misbehavior, prejudicing the rights of one of the parties within the meaning of the statute. There is no doubt that this was the law before the adoption of the present Arbitration Act. National Bank of Republic v. Darragh, 30 Hun, 29; Fudickar v. Guardian Mutual Life Ins. Co., 62. N. Y. 392, 405; Knowl-prescribes the grounds for vacating an award, ton v. Mickles, 29 Barb. 465; Matter of Plews & Middleton, 6 Ad. & Ellis (N. S.) 845; Walker v. Frobischer, 6 Ves. Jr. 70; Drew v. Drew, 2 McQueen Scotch App. Cas. 1; Moshier v. Shear, 102 Ill. 169, 173, 40 Am. Rep. 573. True, the arbitrator in this proceeding acted in good faith, but misbehavior, though without taint of corruption or fraud, may be born of indiscretion. This is abundantly established, not only by the adjudged cases, but also by the specific instances of misconduct enumerated by the statute in this very subdivision. Cf. Halstead v. Seaman, 82 N. Y. 27, 30, 37 Am. Rep. 536. [2] The Appellate Division, conceding the previously existing rule, held, however (citing Matter of Berkovitz v. Arbib & Houlberg, 230 N. Y. 261, 269, 130 N. E. 288), that a new public policy had been declared by the present Arbitration Act (Laws 1920, c. 275; Consol. Laws, c. 72), with the result that what had been misbehavior before was misbehavior no longer. But the only new public policy declared by the present act is the removal of the ban that had been laid by the decisions of the courts upon general and executo and does this in words that go back to the Code and the Revised Statutes. The incorporated section is nearly a century old, and during that time its meaning has been fixed by judicial decisions, repeated and consistent. We find it incredible that the Legislature, in re-enacting the old words, has filled them with a new content, and rejected the ancient standards of behavior for those who are to sit in judgment. If misbehavior be assumed, we cannot doubt upon this record that prejudice resulted. The plaintiff, knowing nothing of the evidence, had no opportunity to rebut or even to explain it. There seems to be support for its position that bamboo skewers are roughly and irregularly wrought, unlike the domestic skewers which are pointed by machinery. The arbitrator's inability to sell his samples in our market may have been due, not to defects of quality, but to the preference of buyers for skewers of a different type. The defendant argues that the testimony gathered by the arbitrator supplies no stronger reason for vacating his award than would the admission of hearsay testi cf. Matter of Fietcher, 237 N. Y. 440, 143 N. mony upon his examination of the witnesses, | tors by tacit, if not express, consent have a procedure well within the range of legiti- been authorized by the parties to proceed mate discretion. The distinction is, however, in their own way. Sweet v. Morrison, 116 obvious. The difficulty with this testimony N. Y. 19, 22 N. E. 276, 15 Am. St. Rep. 376; is not merely that it is hearsay, but that it was collected and acted upon without the knowledge of those affected and without opportunity to repel it. We do not mean, of course, that an award will be vitiated by investigations in the absence of the parties if directed toward facts of trifling importance or facts of such a nature as to preclude reasonable contest. This may include views or measurements or the ascertainment of physical conditions notorious and permanent. There may be times, also, when an inference will be permissible that a trial in the proper sense has been waived, and that the arbitra The judgment of the Appellate Division should be reversed, and the order of the Special Term affirmed, with costs in the Appellate Division and in this court. HISCOCK, C. J., and POUND, CRANE, ANDREWS, and LEHMAN, JJ., concur. MCLAUGHLIN, J., absent. Judgment reversed, etc. (146 N.E.) (315 III. 572) (Supreme Court of Illinois. Feb. 17, 1925.) I. Attorney and client 53(2)—Relator in disbarment proceedings held required to establish truth of serious charges beyond reasonable doubt. In disbarment proceedings charges that attorney had been guilty of crimes should be required to be proved beyond reasonable doubt, and proof of other unprofessional conduct should be clear and convincing. bringing her to Illinois from Ohio, where she was arrested, and while she was confined in the jail of Champaign county, and that she was pregnant by him; that respondent knew the story was untrue and without any foundation in fact, and threatened to make it public for the purpose of inducing the officers to dismiss the prosecution of the case. The fifth count charges respondent with falsely accusing a woman mentioned with improper relations with a married man for the purpose of extorting $500 from the wo man for the wife of the married man, and that respondent knew the charges were false 2. Attorney and client 54-Commissioner's and untrue. so held. Disbarment proceedings on the relation of Roy R. Cline, State's Attorney, against Harry E. Kerker. Rule discharged. Roy R. Cline, State's Atty., of Urbana, for relator. Francis T. Carson, of Urbana, and Craig & Craig, of Mattoon, for respondent. We have endeavored to condense within the smallest possible limits the substance of the charges in the information. They were all denied by the answer. We shall endeavor to dispose of this case in the briefest possible manner, without setting out the testimony or its substance in detail, as we believe the public interest and good will be best served by that method of treating this case. [1] The third and fifth counts, which are the counts relied on by relator, both involve scandals and cannot be treated in detail without the use of the names of several people who, besides the principals, were brought into the case by the testimony, and we do not believe we should add to the permanency of the record of the scandalous testimony by placing it in the volumes of the decisions of this court. It is sufficient to say that the testimony abundantly warrants the report of the commissioner that the charges against respondent were not proved. The charges are of a most serious character be required to establish their truth beyond a reasonable doubt. In any case, whether the misconduct charged amounts to a crime or merely to unprofessional conduct, the charge must be proved by clear and convincing testimony. People v. Thornton, 228 Ill. 42, 81 N. E. 793; People v. Sullivan, 218 Ill. 419, 75 N. E. 1005; People v. Ader, 263 Ill. 319, 104 N. E. 1060; People v. Baker, 311 Ill. 66, 142 N. E. 554, 31 A. L. R. 737. The proof in this case is not sufficient to create a well-founded suspicion of the truth of the charges. FARMER, J. This is an information to disbar, which was filed by leave of court at the June term, 1922. A rule was entered requiring respondent to answer by the first day of the October term of that year. The answer was filed and the cause referred to the master in chancery of Piatt county, as commissioner, to take the testimony and—some of them crimes-and the proof would report his findings and conclusions. The evidence was taken from time to time, and the commissioner's report was filed to the October term, 1924, of this court. The commissioner reported that the evidence did not sustain the charges made in the information or either of them, and he recommended that the rule against respondent be discharged and that he should not be disbarred. Relator filed exceptions to the commissioner's findings and conclusions as to the third and fifth counts, and also some general exceptions to the commissioner's report in the admission and rejection of testimony. He admits the proof did not sustain the first, second, and fourth counts. Those counts charged respondent with subornation of perjury in the trial of criminal cases. The third count charges that the respondent and another lawyer of Champaign county, who were employed to defend Margaret O'Day, a woman under indictment for larceny, went to the deputy sheriff and his father, the sheriff, and represented to them that Margaret O'Day had told them of illicit relations the deputy sheriff had with her while [2] Respondent excepted to the commissioner's report for merely finding that the proof failed to sustain the charges in the information, and argues that he should have found specifically that the respondent was not guilty. That is the effect of the commissioner's report when he found the charges were not sustained by the proof, and we see no objection to the commissioner's report in that respect. As the interests of all parties who were in any way connected with or mentioned in this suit will, in our judgment, be best serv For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |