Ajaeb v. Ajaeb , 276 A.D.2d 1094 ( 1950 )

Nolan, P. J., Carswell, Adel and Sneed, JJ., concur; Johnston, J., concurs in the result, with the following memorandum: During the direct examination of defendant, the court excluded plaintiff from the courtroom for ten minutes because she was “ disturbing ” the court. During that ten-minute interval defendant testified (1) that at the time of the marriage in April, 1938, he gave his father-in-law $700; (2) that he bought a $1,500 trousseau for his wife; (3) that in January, 1939, he bought plaintiff a $1,000 mink coat; (4) that in May, 1946, he bought his wife a $600 silver fox jacket. While a party has an absolute and unqualified constitutional right to be present at the trial of a civil action (N. Y. Const., art. I, § 6; Chandler v. Avery, 47 Hun 9; People ex rel. Garling v. Van Allen, 55 N. Y. 31), a party may waive that constitutional right. I am of the opinion that plaintiff waived her constitutional right in that, after her return to the courtroom, her counsel cross-examined defendant with respect to items (1), (3) and (4), plaintiff thereafter giving affirmative testimony in rebuttal with respect to items (3) and (4). The testimony with respect to item (2) was immaterial. In addition, plaintiff gave affirmative testimony in her cross-examination with respect to that item, which was not in conflict with that given by defendant. [See 277 App. Div. 771.]