#### John P. Conselyea and Others, Appellants, *v.*Primus Van Dorn, Respondent.

Second Department,

December 30, 1908.

Evidence — ejectment — admissions of defendant.

The plaintiff in an action of ejectment may prove any admissions made by the defendant showing or tending to show that he did not claim title to the premises.

In order to prove the admissions of a party to an action it is not necessary to call his attention to the time and place they were made.

Gaynor, J., concurred in result, with opinion.

Appeal by the plaintiffs, John P. Conselyea and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 24th day of January, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 3d day of February, 1908, denying the plaintiffs’ motion to strike from said judgment the sum of $250, additional allowance of costs, and in the alternative to reduce the said allowance to $150.

*Frederick H.*Cox, for the appellants.

*James C. Van Siclen,*for the respondent.

Jenks, J.:

This appeal is from a judgment for the defendant in an action for ejectment wherein a verdict was directed at Trial Term.

I think that the plaintiffs should have been permitted to prove, if they could, any statements made by the defendant which showed or which tended to show that he did not make claim of title to the *521premises in dispute. How much such statements are worth is not for us to say. In *Colvin*v. *Burnet*(17 Wend. 569) Co wen, J., for the court, says : “ It is well known that a single lisp of acknowledgment by the defendant that he claims no title, fastens a character upon his possession which makes it unavailable for ages.” (See, too, *Cutting*v. *Burns,*57 App. Div. 185; *De Lancey*v. *Hawkins,*23 id. 8, 14; affd., 163 N. Y. 587.) I cannot infer that the learned court excluded these statements for any reason save that the objections made that they were irrelevant, incompetent and immaterial were good, but in view of a new trial it may be well to point out that the questions were sufficiently explicit and definite, for the rule that the attention of a witness must be called to the time and the place when and where he made the alleged statements does not obtain when he is a party. *(Blossom*v. Barrett, 37 N. Y. 434;*Ruemer*v. *Clark,*121 App. Div. 231.) Moreover, the different hearers of the alleged statements were specified in the questions.

The judgment and order are reversed and a new trial is granted, costs to abide the event.

Woodward, Hooker and Miller, JJ., concurred; Gaynor, J., concurred in separate opinion.

Gaynor, J. (concurring):

I concur, but not in the suggestion or implication that there is a rule that if a witness who is not a party be asked on cross-examination if he made a certain statement contradictory of his present evidence the question must include time and place to be allowed. There is no such rule. On the contrary, he may be asked if he ever made the statement. Wider latitude than this is allowed on cross-examination. The case of *Ruemer*v. *Clark*which is cited only asserts the familiar rule that you may prove material declarations of a *“*party ” without first asking him if he ever made them. It is trite that the material declarations of a party are competent and may be proved in any way. The other case cited, *Blossom*v. *Barrett,*only deals with the same rule. There the defendant had testified that he was worth only $17,000, and on cross-examination he was asked if he did not tell one Randall that he was worth $70,000, and the question was properly allowed, though no time or place was mentioned. There is a rule, however, in the trial of causes that if a *522witness who is not a party be asked on cross-examination if he did not make a certain statement which is contradictory of his present evidence oral evidence to contradict his negative answer may not be allowed, especially if the witness has departed court, unless the question to him included time and place, if possible; and the witness being thus contradicted is often recalled to have this omission supplied when it is made the basis of an objection. But this rule is one of order and discretion in the trial of causes, and it is hard to conceive of a case of departure from it that would be considered on appeal at all.

Judgment and order reversed and new trial granted, costs to abide the event.