114 N.Y. 51 | NY | 1889
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *53 This action was brought to recover the possession of eight bales of Sumatra tobacco purchased by the defendant's assignor, as is alleged, by means of false and fraudulent representations as to his solvency, and with the intent not to pay therefor. Upon the trial the plaintiffs gave evidence tending to show that, before making the sale of the goods in question, the defendant's assignor represented and stated that he was solvent and worth $20,000; that his wife had $10,000, which was in the stock at the risk of the business. After the plaintiffs had rested, the defendant's assignor was sworn as a witness for the defendant, and denied that he had made any such representations. Upon the cross-examination he was asked if he had not purchased goods at about that time of various individuals, among whom were Schrœder Bon, and he testified that he had, but at the time of such purchase in August or September, 1885, Bon did not make any inquiry of him as to his financial condition, and that he did not say to Bon that he was solvent and worth $20,000, and did not state to him that he had $10,000 in his business from his wife, which was at the risk of the business. After he had rested, the plaintiffs called Bon as a witness, who testified that he sold the goods to the defendant's assignor in August or September, 1885, and that, at the time he made a statement as to his condition. The witness was then asked "Did he state to you that he was solvent; that he was worth $12,000, and that the $10,000 which he got from his wife was at the risk of the business?" This was objected to as immaterial, incompetent and not in rebuttal. The evidence was excluded and an exception taken by the plaintiffs.
The court at General Term held that the statement made to Bon and others was competent as evidence in chief, and that the plaintiffs, having rested without introducing it, left its subsequent admission discretionary with the trial court, and, *55 consequently, that the exception to its exclusion was not well taken. It is doubtless true that the evidence was competent and could have been introduced by the plaintiffs as a part of their affirmative case for the purpose of showing an intent to cheat and defraud, and that their neglect to introduce it at that time deprives them of the right to make use of it as affirmative evidence. But a party has the right to impeach or discredit the testimony of an opponent, and such evidence is always competent. He may contradict the testimony of a witness as to any matters upon which he has been called to give evidence in chief, provided it is not collateral to the issue; if it has reference to statements made to others, his attention should first be called to the time, place and person to whom the statement is claimed to have been made, and if denied, such person may then be called to contradict him, thus discrediting his testimony as a witness. This is what the plaintiffs attempted to do, and we do not understand that it was discretionary with the trial court to exclude it.
In the case of Winchell v. Winchell (
The judgment should be reversed and a new trial ordered, costs to abide the event.
All concur.
Judgment reversed.