Bickford v. Menier — 31 N.Y. St. Rep. 341

Majority

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Elizabeth Bickford, App’lt, v. Henri Menier et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed April 18, 1890.)

Headnote

Tbial—Credibility of witness.

The fact that a witness upon a new trial gives new and important testimony upon matters gone into on the former trial and supplies defects, and that his explanations of the reasons why he omitted these facts before might seem unsatisfactory to a jury, does not authorize the court in refusing to submit such facts to the jury.

Appeal by the plaintiff from a judgment rendered after a trial at circuit, where her complaint was dismissed.

James M. Smith, for app’lt; Hugh L. Cole, for resp’ts.

The question presented by this appeal is, whether ' the case made by the plaintiff upon the second trial of this action differs materially from that which underwent the scrutiny of the court of appeals upon the final review of the first trial 107 N. Y., 490 ; 12 N. Y. State Rep., 304. We have carefully examined the two records and are0 of opinion that the plaintiff, upon this second trial, supplied what was wanting upon the former trial, namely, evidence of her brother’s actual authority to borrow money for the defendants. There were many circumstances in the case tending to throw doubt upon this fresh evidence and to impair the credibility of the witness who gave it, Mr. Edward Bickford. It is, indeed, argued with some color of probability that this testimony is a variation from that originally given, occurring to the witness only after the ruling of the court of appeals.

We cannot say, however, that this new testimony is so inherently improbable, or that it was so radically impeached, as to justify a dismissal of the complaint. As to part of the amount sued for (the two items of £200 each), this witness, Bickford, declared that, as far back as the year 1879, he actually exhibited a book of account, indicating what he had done, to one of the defendants and to their general agent in London, one Guenin; that this agent was specifically informed of the borrowing of this £400 and made no objection to it, simply inquiring whether it was

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necessary for the business and being told that it was; and that Mr. Gaston Menier had the opportunity to see it as entered in the book and probably did so see it On the latter head, the witness says“ I showed it to Mr. Menier and to Mr. Guenin; showed it to both of them;” and again: “ the £400 is in that book November; Guenin saw that page in that book in London, when I was there; Mr. Gaston Menier saw it; I exhibited it to him."

The witness, it is true, admits that he may not have pointed out to Mr. Menier these specific items of £200 each, but there certainly was enough in his testimony to call for the submission to the jury of the question of ratification on that head as well as the question of original authority, especially in view of the distinct statements that the money thus borrowed was used and ex- • pended in the defendants’ business and for their purposes.

As to the remaining £800, Bickford testified to direct authority to borrow, when required. This authority he received from Guenin, but the defendants explicitly told him, so at least he says, to take his instructions from Guenin. This is his testimony on that head: “ My instructions from them (the defendants) were to follow out Mr. Guenin’s instructions;” and again : “Mr. Emil Menier gave me the particulars to carry out what Mr. Guenin authorized me.” Here was neither limit nor restriction, and Bickford was thereupon justified in taking all his authority from Guenin, including the authority to borrow money when required in the business.

This testimony was substantially new, and if credited or undenied it was sufficient to authorize a recovery. Upon the firit trial it was not claimed, as observed by Ruger, C. J. (supra, page 492) that Edward Bickford had “ any positive unwritten or verbal authority ” to borrow money for the defendants.

Nor was there any evidence upon that trial that the loans were made to the defendants or upon their credit, nor that the plaintiff relied upon any representation made by her brother othat he had authority to borrow for the defendants. Id. 498.

Upon the" present trial, however, Bickford testified that he “ told his sisters it was necessary to have some means, some money; that the accounts were not coming in; collections were not being made as rapidly as they should be to meet the necessary disbursements of the business, (and that she was perfectly safe in loaning that money to Mr. Menier.) ”

The words in parenthesis were stricken out by the learned court, but we see no reason for confining the witness to but a part of the representation upon which the loan was requested. It is thus evident that new and important testimony, upon more -than one point, was given upon the .present trial.

The witness was clearly interrogated as to his reasons for omitting such crucial testimony upon the previous trial, and we can see that his explanations might perhaps have been deemed unsatisfactory by a sensible jury. But that did not justify the refusal to submit the testimony with such explanations and the criticisms thereon to their consideration; and we think that the question of

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actual authority, and of the loans to the defendants thereunder, should have been so submitted.

For these reasons the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Van Brunt, P. J., and Bartlett, J., concur.