Huebner v. Roosevelt

7 Daly 111 | New York Court of Common Pleas | 1877

Van Hoesen, J.

The plaintiff was examined as a witness on his own behalf, and when cross-examined by defendant’s counsel, was asked with respect to a material statement, “ Did you ever tell that before on any trial of this cause ; if so, when and where?” The court sustained an objection to' the question, and the defendant excepted. The defendant argues that the presumption is that the question would have been answered in the negative, and would have convicted the plaintiff of inventing a falsehood to make out his case, and thus have made his whole evidence unworthy of credit. A witness cannot be impeached by showing that on a former trial, when testifying on the subject under investigation, heomittedto state circumstances which he details on the pending inqrury. It is no contradiction, unless the attention of the witness was, at the former trial, called particularly to the matter’s which he then omitted to state. (Commonwealth v. Hawkins, 3 Gray, 463.) The defendant’s exception to the refusal of the court to allow him to show how much he paid Mrs. Huebner for her services as janitress for the year 1866-1867 is not well taken. The question was not material to any issue raised by the pleadings. The only remaining exception is untenable, because it was purely a matter of discretion with the judge at the trial to admit on the rebuttal evidence ¿which ought properly to have been offered by the plaintiff before he first rested his case.

We have noticed the exceptions, because we are satisfied that upon the trial there was no error committed by the learned chief justice who presided. We think, however, that a new trial ought to have been granted upon the motion made upon the ground of newly-discovered evidence. The affidavit of Dr. Sheppard shows that he was present at a conversation in the latter part of the year 1865, at which an agreement was made between the plaintiff and the defendant that the rent of the office occupied by the latter was to be offset by the indebtedness of the plaintiff to him, under the new arrangement then agreed to. Although the defendant had testified generally to such an agreement, no testimony was offered on the trial relating to this particular interview at which Dr. Sheppard was present, and under the case cited below the testimony was not cumulative. (Simmons v. Fay, 1 E. D. Smith, 114; Wehrkamp v. Willett, 1 Daly, 4; Oakley v. Sears, 1 Abb. Pr. N. S. 368.) The defendant’s excuse for not producing Dr. Sheppard as a witness was reasonable ; ■eleven years having elapsed between the interview mentioned in Sheppard’s affidavit and the time of the trial of this action. The order and judgment should be reversed, and a mew trial granted, with costs to abide event.

Joseph F. Daly and L arremore, JJ., concurred.

Judgment reversed and new trial ordered.