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Donaldson v. Alexander

29 Misc. 356 Court N.Y. App. Term English

Delivered by Leventritt, J.

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p. 356
John Donaldson, Respondent, v. Richard Alexander, Appellant.
(Supreme Court, Appellate Term,
October, 1899.)

Headnote

Witness — Impeachment by one who heard him testify on a former trial.
For the purpose of Impeaching a witness, a person who heard him testify upon a trial in another action may state what the witness then said, and it is not necessary to resort to the court stenographer or to his minutes.
Arpeal from a judgment, in favor of the plaintiff, rendered in the Municipal Court of the city of New York, tenth district, borough of Manhattan.
Edward A. Alexander, for appellant.
Abraham I. Elkus, for respondent.

The controversy in this case is for the unpaid balance of the plaintiff’s bill for work, labor and services. The sole question litigated was whether the defendant or one Brandt was liable for the debt. In another action against the same defendant brought by Brandt the latter gave testimony before a referee concerning the claim here in suit. The plaintiff called Brandt as a witness in his behalf on the trial of this action and his testimony supported the plaintiff’s contention. To meet this the defendant sought to impeach Brandt’s credibility by proof of contradictory statements made by him on the former trial. To that end he proffered the judgment-roll containing the stenographic minutes of the evidence taken thereon. The proposed proof was excluded, and properly, because the offer was too broad, embracing matter foreign to the issue in this action, and having no possible bearing on the credibility assailed. Thereupon, the defendant’s attorney, who heard Brandt’s statements in the first suit, took the stand to testify to those statements. The proposed evidence was ruled out, the following ground being assigned: “ This is not the proper way to offer proof to show contradictory statements made by witnesses * * * . The court calls attention in connec

p. 357
tion with this ruling that Louis Brandt, whose testimony is offered, is not a party to this action.”

The ruling was erroneous, as the evidence was clearly admissible. The method adopted by the defendant’s attorney to impeach was proper, and is applicable equally to parties and witnesses. Oderkirk v. Fargo, 61 Hun, 418 , 422. Any person who was present before the referee and heard the testimony of Brandt, was competent to testify in respect to what was stated by him (Grimm v. Hamel, 2 Hilt, 434; Pickard v. Collins, 23 Barb. 444 ), and it was unnecessary to have resort either to the stenographer or to his minutes. Nasanowitz v. Hanf, 17 Misc. Rep. 157 , 159, and cases cited.

This error was prejudicial to the defendant, and the judgment must, therefore, be reversed.

Fbeedmah, P. J"., and MacLeah, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

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