176 A.D. 320 | N.Y. App. Div. | 1916
The State Commissioner of Excise sues principal and surety for a violation of their bond, in that the former permitted the certificated premises to become, be and remain disorderly. The question of the principal’s conduct was litigated and the jury found for the defendants. I think that we should not heed the plea that the verdict is contrary to the proof.
The plaintiff contends that the court committed certain reversible errors in rulings, of which only two deserve consideration.
1. The wife of the principal, who resided with him in the said premises, had alone been tried and convicted in a Court of Special Sessions for a violation of section 1146 of the Penal Law in keeping the premises as a disorderly - house. The plaintiff offered in evidence a certificate and record of her conviction, with the contention: “It is a record of conviction; it .is practically a litigation of the matters between the plaintiff here and the defendants; it is a judgment of the court, and practically when admitted we are entitled to a direction of a verdict. ” The final ruling of the court excluded the record as to both defendants, and the jury was instructed to disregard. it. I think that the ruling was right. In 'Sims v. Sims (75 N. Y. 466), Sapallo, J., for the court, discussed but did not determine the general question involved in this ruling. That learned judge found that the decisions were not harmonious as to whether, in a civil action, the record of conviction for a crime was admissible as prima facie evidence as to the facts, or not competent at all, but said: “ There is a great weight of authority against its being admissible at all, except as evidence of the fact of conviction, where that fact is material.” He pointed oat that this is the general rule approved by Greenleaf (1 Greenl. Ev. § 537) and declared in many cases.
In Wilson v. Manhattan Railway Co. (2 Mise. Rep. 127) Wilson sued for false imprisonment. Pryor, J., writing for the court (the General Term of the Common Pleas), said: “The police court convicted the plaintiff; and appellant contends that the trial judge erred in refusing to charge that such conviction was evidence of plaintiff’s guilt. The proposition is untenable. A judgment in a criminal prosecution is admissible in civil case only to establish the fact of the rendition of the
In Stone v. United States (167 U. S. 178, 184) — an action to recover the value of certain timber—it appeared that the defendant had been indicted criminally for the cutting of the timber and had been acquitted. The court say: “In our opinion the record of the criminal proceedings in the court in Idaho was not evidence to establish or disprove any of the material facts involved in the civil action.” And the court then proceeds to limit Coffey v. United States (116 U. S. 436). (See, too, People v. Rohrs, 49 Hun, 150; People v. Snyder, 90 App. Div. 422, 423; City of Woodburn v. Aplin, 64 Ore. 610, 621; 1 Greenl. Ev. [15th ed.] § 537; Whart. Ev. [3ded.] §§ 776, 777; Black Judg. [2ded.] 794; 1 Herman Oom. on Estop. & Res Adjud. 483; Starkie Ev. [10th ed.] 331; Jones’ Oom. Ev. [Horwitz ed.] § 589.) In Castrique v. Imrie (L. R. 4 H. L. 415), Blackburn, J. (at p. 434), says: “A judgment in an English Court is not conclusive as to anything but the point decided, and, therefore, a judgment of conviction on an indictment for forging a bill of exchange, though conclusive as to the prisoner being a convicted felon, is not only not conclusive, but is not even admissible evidence of the forgery in an action on the bill, though the conviction must have proceeded on the ground that the bill was forged.” Greenleaf on Evidence {supra) says: “ Upon the foregoing principles, it is obvious that, as a general rule, a verdict and judgment in a criminal case, though admissible to establish the fact of the mere rendition of the judgment, cannot be given in evidence in a civil action, to establish the facts on which it was rendered A Farley v. Patterson (166 App. Div. 358), in so far as it holds that the judgment of conviction established the plaintiff’s case, is against the weight of the authorities. It is true that such
The learned counsel for the appellant insists that the parties are the same in both cases, as the People of the State (the real plaintiff) and the defendant’s “ alter ego, his wife,” litigated the question. But in People v. Snyder (supra) the court say: “The contention here, however, is founded largely upon the facts that the two remedies are prosecuted in the name of the People, and the suit for the penalty is quasi criminal in character. They are, however, entirely independent, and one is a criminal and the other a civil action. * * * The authorities in this State as far as our research has extended are uniform in holding that the two actions are not at all dependent upon each other.” I am not aware that a judgment of conviction of a wife is a judgment of conviction of the husband, in that she is his “ alter ego.” Indeed, in the criminal law, there is not even presumption of the husband’s coercion in cases of “ the keeping of brothels and other disorderly houses.” (Bish. New Grim. Law, § 361.)
2. It is contended that the court erred in refusing to charge that the wife of the principal as such is classed as an interested witness. But the court immediately before had instructed the jury that, although there was no witness in the case who had in the law an interest in the litigation, there were witnesses ‘ ‘ who may, by reason of their relationship to, or service for, or their position in the service of the parties to this litigation, in the judgment of the jury, be found to have a bias or prejudice for or against the parties to the action, and that, if there be such witnesses, the jury may upon finding that fact take that fact into account in determining the weight which they will give to the testimony of such a witness.” I think that in this case the court indicated sufficiently the possible status of the wife of the defendant as a witness. The wife, merely as such, was not an “interested witness.” (See Oode Civ. Proc. § 828; Fogal v. Page, 13 H. Y. Supp. 656, 658.) While it was not essential to her description as an “ interested ” witness that she should have a direct pecuniary interest in the outcome (Wohlfahrt v. Beckert, 92 N. Y, 490), nothing was developed that
The judgments and order are affirmed, with costs.
Carr, Mills, Rich and Putnam, JJ., concurred.
Judgments and order affirmed, with costs.