¶1In my opinion the plaintiff opened the door wide for testimony on the part of the defendant as to the circumstances under which she received the money now sued for. The only evidence that defendant ever received the money from decedent was testimony on the part of plaintiff and his partners that defendant" admitted to them in their office that decedent liad given her the money." The proof of this admission was equivalent to calling defendant as a witness and eliciting from her by direct questions the fact that at a certain time or times the decedent had given her a sum of money. In such a case there is-no question that the door would have been opened to defendant to testify as to the whole transaction between " herself and the decedent, even to the' extent of showing that the money was a gift to her. (Mahoney v. Jones, 35 App. Div. 84; Nay v. Curley, 113 N. Y. 575.) In the latter case it was said, with reference to section 829 of the Code of .Civil Procedure: “ That section was not intended to abrogate the principle in the law of evidence that where a party calls a witness and examines him as to a particular part of a communication or transaction, the *188other party may call out the whole of the communication or transaction hearing upon or tending to explain or qualify the -‘particular part to which the examination-of. the other party-was directed.” Without' defendant’s admission that she had received. the money from decedent the plaintiff 'could have, proven no, cause of action. Having elicited that admission, which'certainly involved a personal transaction with the decedent, the plaintiff could not in my opinion rest his recovery upon -that-admission and preclude defendant froim stating the-, whole .transaction, concerning- which the plaintiff had questioned her in his office, no further than suited the purpose lie had in .view. The admissions said to have been made by defendant to plaintiff were something more than a voluntary .admission and statement such as is- referred to in Cole v. Sweet (187 N. Y. 488), and which as therein stated would not open the.way to testimony-by the defendant. ■ True the defendant was under no compulsion to answer any-of plaintiff’s questions, but when we consider that this plaintiff was a lawyer;, that lie had requested defendant to call at' his office; that' she had no professional .advice- at the timé, and may ■ not be presumed to have known the. effect of any statement made by her, or that she could not thereafter explain or--amplify her admission,- the .reason for holding that the statute does not forbid - her to testify seems’to me to be complete. As was. said in Cole v. Sweet (supra): “Equality cannot be preserved, nor unfair advantage prevented; if a party.is allowed to do indirectly that which he could not do directly,” The evidence objected to was, therefore, in my opinion, properly received. .
¶2In any event the plaintiff failed to make out the cause of action alleged in the complaint ánd should have, beeh nonsuited. He elected to sue in conversion, alleging that the defendant wrongfully took the property of the decedent. Of such wrongful taking there was not a particle of evidence.
¶3In my opinion the judgment was right and should be affirmed.
¶4Judgment and order reversed, new trial ordered, costs to appellant to abide event. . ,