18 N.Y.S. 353 | New York Court of Common Pleas | 1892
In limine, the respondent urges a point which, if well taken, disposes of the case adversely to the appellant. The contention is that the answer presents no defense to the action; and that, therefore, the exceptions to evidence relied on for reversal are ineffectual to the purpose. It seems, indeed, that no material allegation of the complaint is controverted; but then, at the trial, respondent made no motion for judgment on the pleadings;
The rule is familiar that an answer to cross-examination touching collateral matter is conclusive on the party eliciting it. Carpenter v. Ward, 30 N. Y. 243. But was the evidence drawn from plaintiff’s witness by the defendant collateral in the sense that it admitted of no contradiction? *In the decision of the point we must observe the distinction between evidence affecting the general credit of a witness and evidence affecting his particular credit in the action. Evidence impeaching the general credit of a witness consists exclusively of testimony to his character or reputation; and if, upon cross-examination, he be questioned as to a particular fact, however damaging to that character and reputation, but not bearing upon his conduct in the action, or his relation to the cause or the parties, the adversary is concluded by his answer. Otherwise, however, as to evidence touching the particular credit in the cause of a witness. For impeaching that credit he may be questioned, on cross-examination, as to any fact that tends to convict him of partiality between the litigants or interest in the litigation; and, if he deny the fact, it may be proved against his contradiction. Thus, in Terrain's Case, 2 Camp. 638, a witness for the prosecution denied, on cross-examination, that he had been accused of robbing the defendant, and had said that he would be revenged on him, and would even fix him in jail. Evidence to contradict him as to the charge of robbing was excluded, because going to his general credit only; but evidence as to his threat was admitted, because affecting his particular credit in the action. So, in Starks v. People, 5 Denio, 106, proof was allowed of a declaration by a witness for the prosecution that a particular locality was a good place to kill the defendant, although he had denied the statement on