I dissent. It is our duty to affirm where the ruling of the court below is in fact right whatever the ground upon which it may be placed. The exclusion of the script in this case was technically correct. (Nat. Ulster Co. Bank v. Madden,114 N.Y. 280; Russell v. H.R.R.R. Co., 17 N.Y. 134; People v.McLaughlin, 150 N.Y. 365, 392; Vicksburg M. Railroad v.O'Brien, 119 U.S. 99; 1 Wigmore on Evidence, 835 [where the New York rule is stated]; Chamberlayne on Evidence, sec. 3507; Jones Commentaries on Evidence, sec. 883; Greenleaf on Evidence, sec. 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.
I think the judgment appealed from should be affirmed. *Page 315
HISCOCK, Ch. J., CARDOZO and POUND, JJ., concur with LEHMAN, J.; ANDREWS, J., reads dissenting opinion, in which CRANE, J., concurs; McLAUGHLIN, J., absent.
Judgments reversed, etc.