Hardy v. Main — 31 N.Y. St. Rep. 109

Majority

p. 109

George H. Hardy, Resp’t, v. Stephen A. Main, App’lt.

(Supreme Court, General Term, First Department,

Filed March 28, 1890.)

Headnote

Evidence—Cross-examination of witness.

In an action for services in building a stairway, plaintiff testified that he was employed by defendant and called as a witness one who was also employed in the building and who corroborated him. On cross-examination this witness was asked if he was not doing work there as a contractor for the entire job, but the question was ruled out. Held, error, as an affirmative answer would have discredited his former testimony, and if he had answered in the negative his evidence might have been contradicted.

Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion made upon the minutes for a new trial.

Jones & Roosevelt, for app’lt; Theodore F. Sanxay, for resp’t.

The verdict was recovered for the expenses of labor and material in constructing stairs in a building owned by the defendant. The performance of the work and the supplying of the material were not controverted upon the trial, but the defendant denied the plaintiff’s employment In his evidence the plaintiff testified positively that he was employed by the defendant to build the stairs which had been constructed by him. To further substantiate his case he called Joseph Coat as a witness, who was also employed in the performance of work upon the premises for the defendant, and upon his cross-examination he was asked whether he was not doing the work there as a contractor for the entire job. This was objected to by the plaintiff’s counsel, and the witness was not permitted to answer the inquiry, and to the ruling then made the defendant excepted, ana this exception seems to have been well taken. For the defendant had the right to prove by this witness any fact or circumstance inconsistent with the evidence he had given, or tending to establish any bias on his part in favor of the plaintiff. And if the witness had answered that he had taken the entire job of this work from the defendant, then without further explanation that would have subjected his statement that the plaintiff was employed by the defendant to construct and put up the stairs to some degree of doubt or discredit. For the position might well be taken if the witness had answered that he did take the entire job of the work, that his evidence stating the plaintiff’s employment for building the stairs was not consistent with this circumstance. And when a witness is examined in favor of one party, the other party to the action has the right to interrogate him concerning any material fact or circumstance which may tend to reduce the weight and effect of his testimony. Dubois v. Baker, 30 N. Y., 355 , 362; Richardson v. Northrup, 66 Barb., 85 , 90; O’Hagan v. Dillon, 42 Sup. Ct., 456 , 461; Wallace v. Marks, 13 N. Y. Weekly Digest, 399; Starr v. Cragin, 24 Hun, 177 . And if the witness had denied the making of the agreement mentioned in the question, - his evidence might have been contradicted on the part of the defendant for the purpose in that manner of affecting the weight of his testimony.

This is sufficient without considering the other point made for the disposition of this appeal. The judgment should be reversed and a new trial ordered, with costs to abide the event.

Brady, J., concurs; Yak Brunt, P. J., concurs in result.