Lindsley v. Miller

39 N.Y.S. 393 | N.Y. App. Div. | 1896

Follett, J.:

This action was begun April 7, 1894, in the County Court of Oneida county to recover the purchase price, seventy-seven dollars and fifty cents, of a horse sold March 16, 1894, by the defendant to the .plaintiff, which sale the plaintiff rescinded March 19, 1894, on, the ground that it was procured by fraud. The defendant denied in liis answer that he made any fraudulent representations, when the horse was-sold. The issue thus formed presented .the only question of fact involved .in the action. The plaintiff testified that, the defendant made many representations which were false and fraudulent, upon which the plaintiff relied when he made the purchase. The defendant testified that he made no such .representations. The parties by their testimony contradicted each other On every material question, and each attempted to corroborate liis evidence by other witnesses. The important question'was,"which should be believed? When the defendant was under cross-examination he testified that he sometimes drove; horses .on race tracks. In reply to a question he testified that, he had never been charged with “ crooked driving.” He -was then asked if he had recently been taken out of his sulky at Syracuse for “ crooked driving ? ” This question was'objected to as incompetent and improper, and as not bearing on the question of ' credibility. ■ The objections were overruled and an exception taken. He answered:. “ I was asked to get out.” It has been held that charging a man with “ crooked practices oil a- race course is slan-, deróns per se. (Gideon v. Dwyer, 87 Hun, 246.) The purpose of the question -yvas to affect the defendant’s credibility, and the tendency of it and of the answer was to prejudice him before the jury.It is- well settled in this State that it is not competent to ask a witness on his cross examination,, for the purpose of affecting his credibility, if he has been charged with crimes Or misdemeanors, or if he has been turned out of a social organization. (Brown v. The People, 8 Hun, 562; affd.) 72 N. Y. 571 ; West v. Lynch, 7 Daly, 245 ; Berner v. Mittnacht, 2 Sweeny, 582 ; Crapo v. People, 15 Hun, 269 ; affd., 76 N. Y, 288 ; Smith v. Mulford, 42 Hun, 347 ; Kober v. Miller, 38 id. 184 ; Hayward v. Sayer, 45 id, 595 ; Van Bokkelen v. Berdell, 130 N. Y 141 ; Barker v. Savage, 1 Sweeny, 288 ; Greaton v. Smith, 1 Daly, 380 ; affd., sub nom. Greton v. Smith, 33 N. Y. 245 ; Ryan v. People, 79 id. 593.)

A witness may be asked for the purpose of affecting his- credibility in respect -to Ms own acts, but not in respect to the acts and declarations of others'tending to discredit him.

Without'considering the other-questions presented on the briefs, We think that, for this error, the judgment and order should be reversed and a new trial granted, with costs to abide the event.

All concurred.

Judgment and order reversed and a new trial ordered, with costs " to abide the event.