Cohen v. Salsberg , 17 Pa. Super. 286 ( 1901 )

Opinion by

W. D. Pouter, J.,

The questions raised by the first and fourth specifications of error in this case were involved in the consideration of the record in the case of Mann v. Salsberg and are disposed of by the opinión in that case this day filed. The second specification of error is without merit. Plaintiffs proposed to call I. Rosenthal, one of the execution defendants “ as for cross-examination.” Rosenthal was not “ a party to the record or a person for whose immediate benefit such proceedings were prosecuted or defended.” It is contended, however, that the plaintiffs had a right to call him in this manner under the provisions of the Act of May 23, 1887, P. L. 158, sec. 7, which permits the calling as for cross-examination of “ any other person whose interest is adverse to the party calling him as a witness.” The adverse interest, of the party called, must be involved in the question being tried,.and it must be such as would be promoted by the success of the adversary of the party calling him. Even if this witness had been within the provisions of the statute, the injury to plaintiffs’ cause, from the refusal to permit his examination in this case, was purely imaginary. The plaintiffs did examine this witness, and, although the questions were directly leading and he was treated as if adverse, he was permitted to answer every inquiry addressed to him. The witness was subsequently called by the defendants, and the plaintiffs cross-examined him at length.

Having reversed the judgment in Mann v. Salsberg upon the question raised by the third specification of error, for the reasons there given that specification is sustained.

The judgment is reversed and a venire facias de novo awarded.