21 N.Y.S. 498 | N.Y. Sup. Ct. | 1892
Lead Opinion
The sole question here is whether one Zuckerman was the defendant’s agent in purchasing the goods for the price of which the action was brought. There is no question as to the amount due, nor as to the assignment to the plaintiffs. None was made at the close of the trial, and the learned judge, in his charge, distinctly told the jury that if the agency was made out their verdict should be for the plaintiffs for the specific sum claimed in the complaint; otherwise, for the defendant. Consequently, exceptions taken at stages of the trial when proof of the claim was being put in need not be considered. There was no direct proof of the agency, and the plaintiffs relied upon admissions thereof which several witnesses testified had been made to them by the defendant. These admissions were denied, and the question of veracity was submitted to the jury, who found for the defendant. We are asked to set this verdict aside, as against the weight of evidence, but after examining the entire record we see no reason for disturbing the decision of the jury.
The appellants also present questions of law. The principal point is ■ as to the rejection of testimony. They examined the defendant’s brother, Max Munzesheimer, and sought to prove Zuckerman’s agency by him. Max Munzesheimer was a salesman in the employ of the plaintiffs’ assignors.. He was examined by commission, and in his testimony thus taken he professed ignorance as to the agency sought to be established. The plaintiffs then issued a second commission, and endeavored to induce the witness to reconsider his former testimony. It seems that prior to the commencement of this action the witness had made an affi
It is contended, however, that the questions propounded to the witness upon the second commission were not for the purpose of impeachment, but to refresh his memory and to elicit the truth. In the earlier questions put to the witness upon the execution of the second commission, he was not asked to examine the affidavit, and then to state whether he adhered to his original testimony, or whether, after refreshing his memory, he had any explanation to give of such original testimony. It seems that two pages of the affidavit were actually embodied in the question first propounded to the witness, and he was asked to note particularly the statements thus read to him, to refresh his memory therefrom, and to explain any difference there might be between these statements and certain answers (also embodied in the question) given by him on the former commission. Thus, if counsel had been permitted to read" these pages of the affidavit as part of the interrogatory, the witness’ contradictory statements would have been placed before the jury under pretense of seeking an explanation of their difference. A specific objection was interposed to the reading of the affidavit
There are other exceptions which would also have necessitated a new trial. The goods in question were purchased to arable the vendee:— whether he was Zuckerman or the defendant—to fulfill certain outside contracts with strangers to the action. We think the defendant should not have been permitted to introduce these contracts for the purpose of showing that Zuckerman was the contractor named therein, nor should the learned court have adverted to that fact as a “very strong circumstance” tending to show that the contracts were Zuckerman’s, and not the defendant’s. When the latter observation was made, the plaintiffs’ counsel suggested, in substance, that these contracts were foreign to the controversy; to which the learned judge responded: “I understand
Concurrence Opinion
(concurring specially.) I think it was error to admit the contracts between Zuckerman and the Missouri Railroad Company in evidence over plaintiffs’ objection and exception. The injury thus done was accentuated in the charge, wherein these contracts were referred to as a circumstance militating against plaintiffs’ claim. Although no exception was taken to this part of the charge, the exception to their original introduction was good, and should be sustained. Upon this ground I concur in the result reached by Mr. Justice BARRETT.
Dissenting Opinion
I dissent. The question assumed that there were differences between the affidavit and the answers of the witness, and as the affidavit is not, and could not be, before the court, there was ño ground for the assumption, and the question was properly excluded. As to the charge, there is no exception raising the question as to the correctness of the charge, and no attempt was made to call the judge’s attention to what is now claimed to have been error.