70 N.Y. 166 | NY | 1877
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *168 The position was not taken on the motion for a nonsuit at the close of the plaintiff's case, that the assured had not an insurable interest in the premises insured, or that the title was not in her. The plaintiff sued as the personal representative of the assignee of the assured, and the non-suit was asked upon the sole ground that there was no proof of the plaintiff's right or title to recover for the loss or damage covered by the policy. No defect in her title to the benefit of the policy was then pointed out, or is now insisted upon, and the reasons assigned for the motion did not cover a defect in the title of the assured, or any breach of a condition of the policy by reason of any such defect, if any existed. If the specific objection now urged had been taken, it might have been obviated, and is not therefore available here.
The questions propounded to the secretary of the defendant, when under examination as a witness, whether he had at any time waived any such condition in a policy as that set up as a defence to this action, and whether he had authority to waive such condition, are claimed to have been proper, and that an answer to them should have been permitted upon the ground that in the conflict of evidence as to the alleged waiver of the condition in this policy between Lewis B. *170 Adams and the witness under examination, an answer in the negative would have forfeited the latter, and tended to show that he was not mistaken in testifying that he had not waived the condition in this particular instance. In other words, the evidence sought to be given is claimed to have been competent as corroborative of the evidence of the same witness, and as giving some support to the truth of his statements and the accuracy of his memory. It is not denied that the evidence would have been collateral to the issue and not admissible as directly supporting the issue on the part of the defendant. The plaintiff would not have been permitted, in making a case and proving a waiver of the condition, to prove that the secretary habitually exercised the power, and waived this and like conditions in other policies. She was held to prove a waiver in this particular case, and a waiver in any number of other cases would not have tended to prove a waiver here, and a waiver once proved by the plaintiff could only be met by direct negative testimony, and not by proof of a refusal to dispense with the condition in other cases. No case was made authorizing evidence otherwise inadmissible merely as corroborative of the evidence of the witness. When a witness has been impeached, it is competent to give corroborative evidence, as that his character for truth, etc., is good, or that he has made the same statements on other occasions; but to permit this to be done, there must be an impeachment of the witness, either directly or indirectly, and there was no such impeachment here. The questions were properly rejected. Here it was merely sought to corroborate an unimpeached witness, by proof by himself of his general course of dealing, and the extent and limit of his powers. This was not permissible.
The witness Chapman was competent to answer the question whether he would believe the witness Adams on his oath. He had given evidence importing an acquaintance with the associates of the witness, and a knowledge of his character, and testified that he had heard his character questioned. The case is precisely within People v. Davis (21 *171 Wend., 309), where the same question was held competent under very similar circumstances.
The other questions urged in behalf of the appellant are considered in the opinion of Judge LEARNED in the court below, with whom we concur.
The judgment must be affirmed.
All concur, except RAPALLO, J., absent.
Judgment affirmed.