Lindsley v. Miller — 39 N.Y.S. 393

Majority

p. 393

(3 App. Div. 127.)

LINDSLEY v. MILLER.

(Supreme Court, Appellate Division, Fourth Department.

March, 1896.)

Headnote

Witness—Ceoss-Examination to Impeach.

It is not competent, on cross-examination, to ask a witness, for the purpose of impeaching him, if he had not recently been taken out of his sulky, at a certain race course, for “crooked driving,” as such question is in respect to the acts of third persons.

Appeal from circuit court, Oneida county.

Action by William B. Lindsley against Vernon Hiller to recover the purchase price of a horse sold by defendant to plaintiff, which sale plaintiff had rescinded, on the ground that it was procured by fraud. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Reversed.

Argued before HARDIN, P. J., and FOLLETT, ADAMS, WARD,, and GREEN, JJ.

D. F. Searle, for appellant.

D. C. Burke, for respondent.

This action was begun April 7,1894, in the county court of Oneida county, to recover the purchase price ($77.50) of a horse sold March 16, 1894, by the defendant to the plaintiff, which sale the plaintiff rescinded March 19,1894, on the ground that it was procured by fraud.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 his 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 his 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” on a race course is slanderous per se. Gideon v. Dwyer, 87 Hun, 246 , 33 N. Y. Supp. 754 . The purpose of the question was 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 or

p. 394

ganization. Brown v. People, 8 Hun, 562 , affirmed 72 N. Y. 571 ; West v. Lynch, 7 Daly, 245 ; Berner v. Mittnacht, 2 Sweeney, 582; Crapo v. People, 15 Hun, 269 , affirmed 76 N. Y. 288 ; Smith v. Mulford, 42 Hun, 347 ; Kober v. Miller, 38 Hun, 184 ; Hayward v. Sayer, 45 Hun, 595 ; Van Bokkelen v. Berdell, 130 N. Y. 141 , 29 N. E. 254 ; Barker v. Savage, 1 Sweeney, 288; Greaton v. Smith, 1 Daly, 380 , affirmed, sub nom. Greton v. Smith, 33 N. Y. 245 ; Ryan v. People, 79 N. Y. 593 . A witness may be asked, for the purpose of affecting his credibility, in respect to his 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.

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

Cases cited

People v. Brown 72 N. Y. 571 N.Y. 1878-02-19 p. 394
People v. Crapo 76 N. Y. 288 N.Y. 1879-02-18 p. 394
Van Bokkelen v. Berdell 130 N. Y. 141 N.Y. 1891-12-01 p. 394
Greton v. Smith 33 N. Y. 245 N.Y. p. 394
Ryan v. People 79 N. Y. 593 N.Y. 1880-01-27 p. 394