Davis v. Evans — 38 N.Y. St. Rep. 487

Majority

p. 487

Frederick W. Davis, App’lt, v. George W. Evans, Resp’t.

(City Court of Brooklyn, General Term,

Filed May 25, 1891.)

Headnote

Witness—Impeachment—Exclusion op evidence.

It is not error to exclude evidence of statements made by defendant, offered for the sole purpose of affecting his credibility, where the offer is made before the defendant has presented himself as a witness.

Appeal from judgment dismissing the complaint and from order denying motion for a new trial.

p. 488

Action to recover damages to plaintiff’s foundry, alleged to have been caused by the pressure upon its wall of a large heap of gravel piled against it on defendant’s adjoining land.

The question referred to in the opinion was as follows :

“Assuming the gravel piled up against the brick wall such as has been named to you, and the wall thrown down into the factory, what significance, if any, has the place where the gravel flowed in and the slope of its flow as regards the fall of the wall ? ”

Alex. McKinney, for app’lt; J. Stewart Boss, for resp’t.

Plaintiff’s counsel offered in evidence certain statements of defendant, for the express purpose of solely affecting his credibility, by showing that he had made conflicting statements, and the learned trial judge excluded them on the ground that counsel had better defer this offer till the defendant had presented himself as a witness, for till then his credibility was not involved.

Upon such an exclusion we do not think error can be predicated. Even if it was error it was cured by plaintiff’s opportunity to offer the statements in evidence after defendant was made a witness and by the actual offer and admission of the statements afterwards. It seems to us that the exclusion of the question at folio 92 was proper. It called upon the witness to express his conclusion that the pile of gravel pushed the wall down, and it did not assume correctly the facts and circumstances sworn to by any of the witnesses.

The counsel should have described the pile of gravel, its shape and size, and asked his mechanical expert the weight of pressure on the wall, and then described the wall and asked him what weight of pressure the wall would resist. But he, in fact, wanted this witness to decide the very question that the jury alone should have decided. These are the only exceptions referred to in the points.

We do not think the verdict contrary to or against the weight of evidence, after a careful consideration of the testimony.

Judgment and order affirmed, with costs.

Osborne, J., concurs.