80 N.Y.S. 763 | N.Y. App. Div. | 1903
The action is to recover damages for a conspiracy and the proof is ample to establish the concerted purpose of the defendants to defraud the plaintiff and its accomplishment.
The defendant Rein claimed to be the inventor of a gasoline rotary engine designed for use in propelling automobiles. In June, 1900, he entered into a written agreement with the appellant and respondent whereby he agreed to transfer to them an undivided half interest in said device and the patent thereon which he was to procure. The parties of the second part agreed to pay him
The plaintiff upon learning he had been duped, as he alleged, ¡brought this action. Rein, who did not answer, was placed upon the stand in behalf of the plaintiff and testified to many facts inculpating Martin in the scheme. He was asked by the counsel for the plaintiff if Martin did not receive a part of the $1,000 which the plaintiff paid pursuant to the agreement and answered in the negative. Several questions of somewhat similar import were put to him to ■show that Martin stated to the plaintiff at the time of the negotiations that each was to contribute $1,000 in the enterprise in cash, ■and further that by virtue of the secret arrangement between the ■defendants a part of the money paid by the plaintiff was to be turned over to Martin. All of these questions were answered in the negative.
Before the trial Rein, at the instance of the plaintiff, had made an •affidavit purporting to disclose the real nature of the transaction and of the fraud which had been perpetrated upon the plaintiff. 'The counsel for the plaintiff, with this affidavit in his hand, and against the objection of the counsel for the appellant, and after proving the affidavit had been verified by Rein, asked him several questions, either read from the affidavit verbatim or else with that •as the text for the inquiries. To these many questions Rein returned in the main equivocal answers, in some instances answering “ Yes; ” in others that he so swore if the affidavit contained the statement; •and in others that he did not know what the affidavit contained, which he often reiterated. The affidavit itself was excluded upon
.Rein, in .sympathy and as a defendant charged with the fraud in conjunction with the -appellant, was a witness adverse to -the plaintiff. The latter, however, was justified in producing him as a witness. The affidavit led him to believe that Rem on the turning matters in the case would testify in favor of the plaintiff in accordance with the facts set forth in the affidavit. Plaintiff’s counsel Was surprised, therefore, when tlm witness departed from statements embodied in,the -affidavit, and ripon the faith and credence of which he was placed upon the. stand.
The witness who unexpectedly develops hostility to the party who produces him may be subjected to a cross-examination if the trial court is satisfied that the witness is adverse or the counsel has been tricked into putting him-on the stand. (Becker v. Koch, 104 N. Y. 394, 401; 8 Ency. Pl. & Pf. 86.)
.. The extent of this cross-examination is within the discretion of the court, and is dependent upon the circumstances of the case and no rigid rule can be adopted covering every case. There is, however, one general rule -of evidence which .seems to have been settled out of the prolonged discussions by the courts even in the examination of adverse witnesses, and that is, that a party may -not impeach his own witness, either directly or by proving his prior, contradictory statements. (Thompson v. Blanchard, 4 N. Y. 303; Coulter v. American Merchants' Union Express Co., 56 id. 585; Becker v. Koch,. 104 id. 394; Fall Brook Coal Co. v. Hewson, 158 id. 150.)
The party producing á witness is .sponsor for his credibility .and may not for any cause turn front and discredit him.. If this evidence was produced for that purpose it was within 'this rule and a new trial should be ordered.
But we are satisfied the inquiries in the nature of a cross-examination were not resorted to for the purpose of disparaging the witness. Their purpose was to refresh his recollection with a view to elicit .from him certain cogent facts, and perhaps with the -design of neutralizing the effect of the persistent denials of the witness and to explain somewhat the •circumstances under which this defendant
As I understand the authorities there is a sharp distinction between endeavoring to show a witness though hostile is testifying contrary to his previous declarations for the purpose of assailing his credibility and pursuing a cross-examination which may incidentally bring reproach upon him, but the object of which is to enliven his recollection, or to explain his testimony in the light of his former sworn statement, or to account for the surprise of the counsel at the adverse attitude of the witness. (1 Greenl. Ev. [15th ed.] § 444; Wright v. Beckett, 1 Moo. & Rob. 414; Melhuish v. Collier, 15 Q. B. 878; Bullard v. Pearsall, 53 N. Y. 230; People v. Kelly, 113 id. 647; Hunter v. Wetsell, 84 id. 549, 555; 1 Rice Ev. 610 et seq.)
In Bullard v. Pearsall (supra) the plaintiff called a witness to prove that a conversation with the defendant had occurred prior to July seventeenth, which was important. To the surprise of the plaintiff the witness testified that the conversation occurred July twenty-fourth. The plaintiff was allowed to ask him if, upon a preceding examination, he had not sworn that the conversation took place in June. This ruling was sustained by the Court of Appeals, and it was the only question discussed in the opinion. The court say (at p. 231): “ Thefnrther question has frequently arisen whether the party calling the witness should, upon being taken by surprise
In Hunter v. Wetsell (supra) the subject was again up, and the court, after stating that a party may not impeach his own witness; use this language (at p. 556): “It would not have been sound if founded upon the idea that plaintiff could not impeach his own witness. - It is true that by calling him he represented him as worthy of belief, and-was not at liberty to impeach his general reputation for truth or impugn his credibility by general evidence tending to show that he was unworthy of belief. That was neither the purpose nor effect of the evidence. Plaintiff' was at liberty to contradict him as to the particular fact of there having been no restatement (Thompson v, Blanchard, 4 N. Y. 311), and this not only when it appeared that the witness was innocently mistaken, but even
This distinction is also recognized in Coulter v. American Merchants' Union Express Co. (supra), and which is a leading authority enunciating the principle that a party may not impugn the trustworthiness of a witness whom he has placed upon the stand. The court says at the close of its opinion (at p. 590): “ There is a class of cases in which a party who calls a witness has been allowed to show by his own examination at least, if not by introducing proof by others, that he had previously stated the facts in a different manner; but this seems to stand upon the ground of surprise, as contrary to what the party had a right or had been led to believe he would testify, or of deceit through the influence of the other party.”
Some of these cases were animadverted upon in the recent case in the United States Supreme Court (Putnam, v. United States, 162 U. S. 687). In that case a witness’ failing recollection was endeavored to be refreshed by reference to his testimony before the grand jury, and a majority of the court held the evidence was incompetent for the reason that the time when it was given was not contemporaneous with the transaction to which it related. An elaborate discussion of the authorities followed, resulting in a disapproval of the doctrine of the cases to which I have referred, but the underlying principle which is the text for the opinion is not analogous to the one involved in the case under discussion.
The matter, even to the extent of allowing a party to contradict his own witness, was regulated by statute in Great Britain in 1854 (17 & 18 Vic. chap. 125, § 22).
On principle an examination of this kind is within the rule permitting the cross-examination of an adverse witness by the party calling him. The manner in which it shall be conducted rests with the trial court, and the discretion exercised will not be interfered with unless it has been abused. The chief purpose of the probing character which the examination, may take is to ascertain and lay the proof before the jury. The object is not to allow the party to asperse his own witness, although that may result in some degree. While it is often difficult in an actual trial to note the distinction adverted to, yet in theory and in principle it is well defined. In the
The. judgment and order should be affirmed, with costs.
Adams,. P. J., and Hiscock, J., concurred;. Williams and Nash, JJ., dissented.
Judgment and order affirmed, with costs.