5 Wend. 301 | N.Y. Sup. Ct. | 1830
By the Court,
The contract proved is certainly not the contract declared on. There may well have been two contracts on the same day, for the same amount, and payable at different periods. But it does not appear to have been in writing, and no objection was made upon (he trial as to the variance; had it then been made, a contract might have been proved corresponding with that set forth in the declaration. Objections may properly be made upon the argument which were not raised at the trial, but
On the cross-examination of Yermilyea, he was inquired of respecting two other bonds, to which he answered that the plaintiff had no interest in them, and the judge precluded any further inquiry. This seems to me to be right. Yermilyea was acting as tire agent for the defendant, and probably for the plaintiff, and if he sold to the defendant other bonds upon different terms and conditions, that could constitute no defence to the plaintiff’s action.
The defendant was permitted afterwards to examine the witness as to the other bonds, and therefore had the benefit of his testimony. He however was not satisfied with it, and offered to disprove the facts stated by Yermilyea. This was objected to and overruled on two grounds: 1. That the defendant had himself called Yermilyea when he gave the testimony which he wished to disprove; 8. That it was not proper to examine a witness to immaterial facts, for the purpose of disproving his statements. I understand the rule to be this: A party cannot impeach his own witness, by shewing him to be unworthy of belief, on the score of bad character ; but a party who calls a witness to prove a particular fact, and fails in establishing it by him, may nevertheless prove the fact by another witness, or may shew that the account given by the first witness is incorrect; but a witness'! is not to be cross-examined to a distinct collateral fact, fori) the purpose of afterwards impeaching his testimony by con/ tradicting him. 1 Starkie, 134. There may be cases where great latitude of examination may be permitted, arising from the disposition, temper and conduct of witnesses, which can be regulated only by the discretion of the court, and for which it is difficult to lay down a precise rule.
The next question is whether the last witness called by the defendant should have been permitted to read his memorandum or to state its contents. The rule is that a written memorandum may be referred to by a witness to refresh his memory, but he must swear to the truth of the facts or his statement is not evidence. 1 Starkie, 129. 3 T. R. 749. It is not sufficient for him to swear that he made a mem
It is also objected that the judge virtually prevented the defendant from addressing the jury. The judge told the defendant that it was his right to address the jury, but he thought it unnecessary, as he should deem it his duty to inform the jury that in point of law the plaintiff had made out his case and was entitled to a verdict. I can see no error in this. The plaintiff had in fact made out a case which entitled him to recover, and the pefendant had not established any defence. Under such circumstances, should the defendant or his counsel endeavor to persuade the jury that the plaintiff should not recover, it would be the judge’s duty to inform the jury of the plaintiff’s rights, and they would be bound to find in his favor. There was no fact in dispute rendered doubtful by contradictory testimony; nor was there any thing shewn to discredit the plaintiff’s witness.
The motion for a new trial is denied.
