Bearss v. Copley — 10 N.Y. 93

Majority

p. 93

Bearss against Copley.

Headnote

The report of a referee upon a question of fact, where the evidence is contradictory, is conclusive.

Where the declarations of a party are proved against him, what he says in his own behalf at the .same time is competent, but not conclusive evidence in his favor.

A witness cannot, on cross-examination, be questioned.as to what he has said at other times in relation to a fact at issue in the cause, where he has not been examined by the party calling him as to such fact, and the matters inquired of are not such as could properly affect his credibility.

The opinion of a witness skilled in a particular art or trade is competent upon question relating to such art or trade, although prior to his examination he has abandoned its practice and engaged in other business.

This action was commenced in the supreme court, in August, 1851, to recover for eight months’ service of the plaintiff as foreman of the defendant’s tannery. The answer alleged a set-off, and a counter-claim for so unskilfully and negligently conducting the tanning of a large quantity of hides as to injure the same to the amount of $1000.

Upon the trial before a referee the employment of the plaintiff was proved, and the length of time that his service continued. One HicJcock was then called on the part of the plaintiff, who testified that the defendant had declared to him that he had discharged the plaintiff, and that he was to pay him $400 a year; and that in the course of the same conversation the defendant said that the plaintiff got drunk, was absent and neglected his business, and that on that account he had discharged him. No testimony having been given by this witness, upon his direct examination, with regard to the industiy or faithfulness of the plaintiff in his employment for the defendant, upon cross-examination the defendant’s counsel put him the following question: “Did you not state at different times to Mr. Copley, while the plaintiff was about the tannery, that the plaintiff neglected his

p. 94

business ?” This question was objected to and overruled and an exception taken. Some other testimony was given bearing upon the question of the plaintiff’s sobriety and faithfulness ; and a motion duly made for a nonsuit was denied.

Taylor More was called as a rebutting witness for the plaintiff, to show that the Hack rot, by which the hides mentioned in the answer had been injured, could not have been caused by the plaintiff’s negligence, but that it was an injury in.hides before they came to the tannery. It appeared ill at the witness had been engaged in the tanning business a little over four years, and had done all kinds of work in the process of tanning, but that he had abandoned the business, and was now a student at.law. The defendant’s counsel thereupon moved to strike out the testimony of this witness, upon the ground that he was not an expert. The referee refused to strike it out and the defendant excepted. The referee reported in favor of the plaintiff, for $166.45, and judgment entered on this report was affirmed at general term in the sixth district, and the defendant appealed.

The cause was submitted here upon printed arguments.

Abraham Becker for the appellant.

S. A. Givens for the respondent.

delivered the opinion of the whole court. The question put to the witness Hickock, whether he had not stated at different times to the defendant that the plaintiff did not attend to his business in the tannery, was properly overruled by the referee. As affirmative evidence to sustain the defence, it was manifestly inadmissible; and as the witness had not testified at all upon the subject of the skill or competency of the plaintiff in his particular employment, a response by him to the question, whether in the affirmative or negative, would not in the slightest degree have affected his credibility.

p. 95

The referee was also right in denying the motion for a nonsuit. The plaintiff had given evidence tending to establish his employment and the length of time that he had labored for the defendant. He then showed, by the declarations of the defendant, his dismissal and the amount of his salary. In the course of the same conversation the defendant said that the plaintiff got drunk, was absent, and neglected his business. The defendant insists that the admission must be taken together, and in this he is correct; but as there was other evidence, the referee was not obliged to give equal credit to every part of the declaration. He might and it seems did believe the discharge of the plaintiff established by the admission, as a fact peculiarly within the knowledge of the defendant, and reject the excuse offered at the same time, not only as inconsistent with ■ the other evidence, but as probably suggested upon information obtained from others.

The last exception was to the admission of the opinion of a witness as to the cause of the black rot in hides, in the process of tanning, upon the ground that he was not an expert. The witness at the time of the trial was a student at law, but he stated that he had been engaged in the tanning business over four years, “ and had done all kinds of work in the process of tanning.” In the absence of all proof to "the contrary, experience for this length of time was prima facie evidence of the competency of the witness to speak upon the subject. There was nothing in the change of employment, from tanning hides to the study of the law, which would necessarily deprive him of the skill acquired in his original trade. The judgment of the supreme court should be affirmed.

Judgment affirmed.