(dissenting). It appears to me that the defendant did not comply with B. B. 4:9-l, requiring pleading of the particulars of fraud and therefore the exception contained in N. J. S. 2A :81 — 2 (6) does not apply.
However at the first trial depositions were offered by the defendant and received in evidence. These depositions disclosed Robinson G-. Hollister’s claim to ownership of stock certificate .No. 7 and the alleged transactions in support thereof between Hollister and Eiedler. Also at the first trial the defendant admitted that the plaintiff (Robinson G. Hollister) was entitled to introduce evidence in support of that claim because the defendant had “opened the door” by claiming that the share of stock was still a qualifying share only and had introduced evidence thereof. The Superior Court, Appellate Division, in the absence of resort by the plaintiff to Buie 3 :54^4 (now B. B. 4:55-4) and Buie 3 :15-2 (now B. B. 4:15-2) held that although fully tried the issue was not properly before the trial court. 22 N. J. Super., at page 448. The plaintiff, Robinson G. Hollister, did not seek certification to review that prior determination of the Appellate Division.
On the remand, the parties stipulated that there were originally 22 shares of stock of Fiedler & Hollister, Inc., issued, 11 owned by Fiedler and 11 owned by Robinson G. Hollister, and that one of Fiedler’s shares originally was issued to Mrs. Fiedler as a qualifying share and was subsequently (after Mrs. Fiedler’s death) transferred to Jean Hollister ás a qualifying share. Defendant resorted to and *251relied upon the testimony and record of the first trial in support of the defendant’s counterclaim and cross-claim and rested his case. The plaintiff and Jean Hollister then contended that the entire testimony (including testimony on depositions) offered at the previous trial should be received in evidence. The defendant, although he had already relied on this entire record, sought to exclude therefrom any references to transactions with the decedent, William C. Fiedler “subsequent to the date when this certificate was handed to Jean Hollister.” The defendant’s course seems to me to constitute a waiver at the second trial of defendant’s right to object to any portion of the record reintroduced. Compare Hoey v. Dell, 10 N. J. Super. 185, 187 (App. Div. 1950).
Whether a waiver of N. J. S. 2A :81-2, supra, made by a decedent’s representative at a first trial continues over to a second trial is a point argued upon which I express ho view. The procedural course pursued in this matter does not present this point on an appropriate basis and the introduction of a new party between the first and second trials introduced an element that would weaken a declaratory expression of views on this point.
It is my opinion that the judgment of the Superior Court, Appellate Division, in the respects appealed, should be affirmed without modification. This results in sustaining the judgment finding the one share of stock to be Robinson G. Hollister’s property.
Mr. Justice Oliphant authorizes me to state that he joins in the views expressed in this opinion. For modification — Chief Justice Yanderbilt, and Justices Heher, Wacheneeld, Jacobs and Brennan — 5. For affirmance — Justices Oliphant and Burling — 2.