Kumberger v. Miller

The issue was narrowed down to the question of value of the labor and material furnished by the plaintiffs to the defendant, and upon this branch of the case the evidence was very conflicting. The justice found for the plaintiffs on evidence sustaining the finding, and we are not prepared to say that he erred in believing the testimony of the plaintiffs’ witnesses. The exception especially called to our attention is found at page 25 of the return. The plaintiffs had called one Pearlman as a witness, and while testifying he made a statement that Herman J. Kumberger had told him that “he was going to play a trick on Mr. Miller,” the defendant. Kumberger was thereafter put on the stand, and denied that he had made any such declaration. It was objected that the testimony was inadmissible, because it tended to impeach the evidence of the plaintiffs’ own witness. It did not. True, having called Pearlman as a witness, the plaintiffs could not impeach his credibility, by attacking his general reputation. Pollock v. Pollock, 71 N. Y. 137 , 152; Becker v. Koch, 104 N. Y. 394 , 10 N. E. 701 , 58 Am. Rep. 515 ; Crossman v. Lurman, 57 App. Div. 397 , 68 N. Y. Supp. 311 . But the party calling a witness is never precluded from proving the truth of a particular fact by any other competent testimony, in direct contradiction to what such witness may have testified. Thompson v. Blanchard, 4 N. Y. 311 ; Melhuish v. Collier, 15 Q. B. 878, 19 Law J. Q. B. 493 ; Pollock v. Pollock, 71 N. Y. 152 ; 2 Cow. Treat. (5th Ed., by Kingsley) § 1485; Pickard v. Collins, 23 Barb. 456 ; Parsons v. Suydam, 3 E. D. Smith, 276, 282; Hankinson v. Vantine, 152 N. Y. 20 , 46 N. E. 292 ; Bannon v. Levy, 20 Misc. Rep. 581 , 46 N. Y. Supp. 353 . Showing that a witness was mistaken is not deemed an impeachment of the witness, within the rule that a party cannot impeach his own witness. Hildreth v. Shepard, 65 Barb. 265 ; Hynes v. McDermott, 82 N. Y. 41 , 37 Am. Rep. 538 . There was no áttempt to show inconsistent statements made by Pearlman for the purpose of im

Judgment affirmed, with costs. All concur.