21 N.Y.S. 989 | New York Court of Common Pleas | 1893
No appeal lies to this court from an order of the city court of New York, which refuses a hew trial. Code Civil Proc. § 3191; Wilmore v. Flack, 96 N. Y. 512; Smith v. Pryor, (Com. Pl. N. Y.) 9 N. Y. Supp. 636. And without proper exception, founded upon a motion for dismissal of the complaint, or that a verdict be directed for defendants, we are not permitted to search the evidence for its sufficiency in support of the verdict. Barrett v. Railroad Co., 45 N. Y. 628; Schwinger v. Raymond, 105 N. Y. 648, 11 N. E. Rep. 952.
On plaintiff’s direct examination he was asked: “For what purpose did you call upon defendants after they had refused the thermometers?” This question was allowed, against objection by defendants’ counsel,
Alfred M. Beadleston, a witness for defendants, was asked on his direct examination: “Did he [meaning plaintiffs’ agent] say anything as’ to whether any other brewer had such thermometers?” This was clearly leading, and so properly excluded, but, assuming the exclusion of the question to have been error, it was waived, and the exception thereto rendered ineffectual, by the witness testifying, without objection, to the next two following questions of defendant’s counsel: “Go oil and state anything else he said;” and “was anything said as to other breweries having these thermometers; and, if so, what?” Neil v. Thorn, 88 N. Y. 270, 277; Crosby v. Day, 81 N. Y. 242.
The remaining exceptions present but one question, and may therefore be considered collectively. The defense was that, at the time of entering into the contract for supply of the thermometers, Beadleston, representing the defendant corporation, stated to Bonnell, plaintiffs’ agent, that defendants desired an advertising medium for the brewing business, of novel and original design in that line of business; that Bonnell represented that plaintiffs had not theretofore supplied any brewer with the thermometers; that, relying upon the truth of this representation, he (Beadleston) was induced to make the contract on defendant’s behalf; and that it subsequently transpired that the representation was false and untrue. Beadleston’s testimony tended to establish this defense, and to disprove it plaintiffs were permitted to introduce evidence from which it appeared that thermometers had for a considerable time before the making of the contract been extensively and notoriously used, in the city of New York and elsewhere, as an advertising medium in a variety of businesses other than that of a brewer.’ To the introduction of this evidence, defendants objected on .the ground that the fact in issue was whether or not thermometers had been previously used as an ‘ advertising medium in the brewing business, not whether or not they had theretofore been used for such purpose in any business. The objection was overruled, and due exception taken. We are of the opinion that the evidence was properly admitted. The credibility of a witness is always in issue, and evidence of any fact which tends to impeach it, or to demonstrate the improbability of the truth of .his assertions, is relevant to the issue, and admissible. Beadleston, having concluded the contract for defendants, was chargeable with its improvidence, and directly interested in its avoidance. His credibility was for that reason a main element for the consideration of the jury in reaching a conclusion concerning his alleged motive in making the contract," and his communication of that motive to plaintiffs’ agent. Bank v. Diefendorf, 123 N. Y. 191, 25 N. E. Rep. 402. Evidence • tending to show that thermometers had for a long time before the contract with defendants been in general use as a medium of advertisement unquestionably affected the probability of the truth of Beadleston’s assertion that he was
