In re Lesher

Decree reversed on the law and facts and a new hearing granted, without costs of this appeal to any party. Memorandum : The Surrogate erred in refusing to permit counsel for the respondent to cross-examine the witness Taylor relative to the retraction of the testimony which she had given on her direct examination. The Surrogate also erred in excluding the affidavit of the witness La Barge wherein he retracted, in part, the testimony which he had given on his direct examination. Counsel should have been permitted to examine and cross-examine those witnesses fully as to the facts relating to any material change in their testimony. Without a full disclosure of the facts, the Surrogate was in no position to determine what weight, if any, should be given to their testimony. All concur. (The decree adjudges respondent to have title to certain personal property and dismisses the petition on the merits.) Present — Taylor, P. J., Dowling, Harris, Larkin and Love, JJ.