(dissenting). Upon wholly adequate testimony a jury has found plaintiff wife guilty of adultery committed in New York City in the month of June, 1952. Plaintiff asserts that the trial was unfair basing her claim chiefly upon the fact that defendant husband’s trial counsel played an important role in the preliminary investigations, was a witness to the so-called ‘1 raid ’ ’ upon her apartment, and testified at the trial. Other alleged errors are asserted which presently will be discussed.
Though the practice of a trial counsel serving as a witness in his client’s behalf is not to be encouraged (Canons of Pro*38fessional Ethics, Canon No. 19) the witness, however, is in no respect disqualified. At times it may even be an attorney’s duty to testify in order to prevent a miscarriage of justice. (Hughes v. Sullivan Co., 261 App. Div. 39, 40.)
It has repeatedly been held that testimony of a trial attorney offered in behalf of his own client is competent. The weight of such testimony is, of course, for the jury; questions of his interest, partiality and bias are to be considered in weighing his testimony. (Little v. McKeon, 1 Sandf. 607, 609; Robinson v. Dauchy, 3 Barb. 20, 31; People v. Tait, 234 App. Div. 433, 441, affd. 259 N. Y. 599; Waterman v. Bryson, 178 Iowa 35.)
In French v. Hall (119 U. S. 152, 154, 155) the rule was concisely stated as follows: ‘ ‘ There is nothing in the policy of the law, as there is no positive enactment, which hinders the attorney of a party prosecuting or defending in a civil action from testifying at the call of his client. In some cases it may be unseemly, especially if counsel is in a position to comment on his own testimony, and the practice, therefore, may very properly be discouraged; but there are cases, also, in which it may be quite important, if not necessary, that the testimony should be admitted to prevent injustice or to redress wrong.”
In Hyman v. Hyman (154 App. Div. 469), an action for divorce, where it was clearly proved that plaintiff was entitled to a decree, this court held it should not be refused merely because plaintiff’s attorney accompanied the witnesses who entered defendant’s house and discovered that he was living in open adultery, and that he had testified as a witness in his client’s behalf.
The fact that defendant’s attorney was a witness for his own client should furnish no basis whatever for upsetting the verdict. His testimony as to the occurrences of June 15, 1952, was wholly cumulative since three other witnesses had previously given proof of the same facts. Defendant’s attorney endeavored to refrain from taking the witness stand by asking his adversary to concede that his testimony would be of similar import to that of the previous witnesses. Such concession was refused. In his zeal for his client’s cause, counsel then felt that it was his duty to testify. Such conduct could hardly be characterized as unfair or prejudicial.
Objection is now made to statements in summation allegedly made by defendant’s counsel. As the summations were not recorded we are unable to see just what was said by counsel on either side. Moreover, no objection was interposed to *39defendant’s summation until after the jury had returned with a verdict unfavorable to plaintiff. In answer to plaintiff’s criticism of respondent’s summation the court made the following comment: “ My recollection is that his summation was
not inflammatory and whatever reference was made by counsel for the defendant in connection with himself and the members of his firm was called for by your summation in making reference to him and his conduct as a witness in this case. Motion denied. You have an exception.”
Nor do I believe that it was error for defendant’s counsel to interrogate Mr. Montgomery who had been the alleged corespondent’s employer. Objection to each question was sustained by the court. Some of the inquiries undoubtedly sought to elicit matter which would have been admissible if the privilege claimed for plaintiff had been waived. While no inferences should have been drawn against plaintiff as to the unfavorable nature of the information sought, no request was made by counsel to instruct the jury to that effect, nor is it reasonable to assume that any unfavorable inference was drawn by the jury.
Error is also claimed in that defendant husband was permitted to testify as to the physical condition of the apartment in which the alleged adultery had occurred in violation of section 349 of the Civil Practice Act. Such error was harmless. Other witnesses had given similar testimony. The evidence related to an issue about which there was no dispute and upon a matter that was not essential to the determination of the case. Moreover, plaintiff withdrew any objection to receipt in evidence of a diagram of the apartment when identified by defendant.
Other alleged incompetent testimony referred to by plaintiff related to her alleged friendship - with a man in Italy. Such evidence was adduced in support of the second framed issue As to that framed issue, the court found for plaintiff and directed the jury to render a verdict in her favor. In its charge, the court distinctly instructed the jury that the only question before it was whether or not plaintiff wife had committed adultery in the month of June, 1952, as specified in the first framed issue. The evidence supported the jury’s finding against the wife as set forth in the only issue submitted to them. That verdict should not be disturbed.
In Minervini v. Minervini (218 App. Div. 407) two issues were framed setting forth two separate acts of adultery. *40Plaintiff there stipulated for the withdrawal of one question from the jury, but the evidence supported the jury’s finding of guilt of the defendant specified in the second framed issue. It was held by this court that though the testimony adduced in support of the first framed issue should have been • stricken from the record upon motion made by counsel for defendant,nevertheless as the evidence supported the finding of the jury of guilt specified in the second framed issue, the error was not regarded as prejudicial and the judgment was affirmed. In the case before us no motion was made by counsel for plaintiff to strike the testimony relating to the second framed charge.
The trial in this case was a long one. The record on appeal covers over seven hundred pages of testimony; the issues were fully and fairly presented by both sides, and a jury after appropriate instructions by the court, to which appellant’s counsel took no exception, rendered a verdict adjudging the plaintiff guilty of the charge of adultery as set forth in the first framed issue. In the light of the evidence, the jury was justified in rendering that verdict. The judgment should be affirmed.
Peck, P. J., Breitel and Bastow, JJ., concur in Per Curiam opinion; Cohn, J., dissents and votes to affirm, in opinion, in which Dore, J., concurs.
Judgment reversed and a new trial ordered in accordance with the opinion herein. Settle order on notice.