Meyer v. Campbell — 48 N.Y. St. Rep. 666

Majority

p. 666

William Meyer, Resp’t, v. Hugh Campbell, Impl’d, App’lt.

(New York Common Pleas, General Term,

Filed November 7, 1892.)

Headnote

1. Evidence—Contradictory statements.

The rule which makes it incumbent on cross-examining counsel first to

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direct the witness’ attention with reasonable precision to and to interro gate him respecting an alleged contradictory statement before, the latter may be given in evidence, does not apply to parties to the action, and as to them the alleged contradictory statement is admissible as a declaration against interest, although it be part of a pleading which has been superseded by the service of an amended one.

3. Same.

So, also, a deposition de bene esse of the plaintiff at variance with his testimony on the trial is competent evidence in favor of defendant.

Appeal from a judgment of the general term of the city court of Hew York, affirming a judgment for plaintiff, entered, upon the verdict of a jury. Action to recover upon a promissory note against the endorser, his defense being that he was discharged by neglect to present the note for payment at maturity, and that the maker was discharged by plaintiff by virtue of a composition with ■creditors.

Henry L. Landon, for resp’t; Edward C. Perkins, for app’lt.

This appeal being from the judgment, and there having been no motion for non-suit„ for the direction of a verdict •or for a new trial, it is beyond our province to inquire into the weight or the sufficiency of the evidence. Schwinger v. Raymond, 105 N. Y., 648 ; 7 St. Rep., 544 ; Smith v. Pryor, 16 Daly, 169 ; 30 St. Rep., 553 .

Two exceptions to the exclusion of evidence on the trial, however, present error for which the judgment must be reversed. The original complaint alleged that the note in suit was duly protested for nonpayment at maturity, while the amended complaint alleged that protest was excused, because defendant requested that it be omitted. On the trial plaintiff testified in substantiation of the last mentioned allegation, and on cross-examination defendant’s counsel asked him: “ Why did you say nothing in this original complaint about the note not having been protested because you were asked not to protest it ? ” To which plaintiff replied that he didn’t know, that at the time of swearing to the original complaint he had forgotten the request that it should not be protested and was under the impression that it had been. Thereupon counsel for defendant offered the original complaint in ■evidence, apparently for the purpose of discrediting the witness’ testimony that the note was not protested because defendant so requested. This was objected to by plaintiff’s counsel on the ground that the fact of the contradictory statement was admitted, and the court excluded the paper as immaterial and incompetent. Reference to the question and answer will show that plaintiff's counsel was in error in assuming that plaintiff had admitted the fact of having previously sworn that the note was protested at maturity. He was not interrogated concerning a statement made, but concerning one he omitted to make, and his answer did not, therefore, involve the admission claimed for it. The rule which makes it incumbent upon the cross-examining counsel first to ■direct the witness’ attention with reasonable precision to, and to interrogate him respecting an alleged contradictory statement, before the latter may be given in evidence, Crane v. Hardman, 4 E.

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D. Smith, 448; Everson v. Carpenter, 17 Wend., 419 ; Root v. Brown, 4 Hun, 797 ; 1 Rice on Evidence, 622, does not apply to parties to the action, Kennedy v. Wood, 52 Hun, 46 ; 22 St. Rep., 132 ; Boehm v. Miller, 45 id., 281 ; and as to them the alleged contradictory statement is' admissible as a declaration against interest, Cook v. Barr, 44 N. Y., 156 ; Williams v. Sargeant, 46 id., 481, and that though the statement be part of a pleading which has been superseded by service of an amended one. Kennedy v. Wood, 52 Hun, 46 ; 22 St. Rep., 132 ; Frearson v, Loe v. 25 Eng. Rep., Moak’s notes, p. 747, 763; Strong v. Dwight, 11 Abb., N. S., 319; Fogg v. Edwards, 20 Hun, 90 .

_ Defendant’s counsel also offered in evidence plaintiff’s deposition taken de bene esse which was at variance with the allegations of the amended complaint that protest was omitted at the. request of defendant Campbell, and from which it appeared that the omission of protest was induced by the request of Stott, the maker of the. note. This also .was excluded under objection and exception. by defendant’s counsel.

The deposition was, as a matter of course, not competent in plaintiff’s favor, since he was present on the trial; but the same principle which rendered the allegations of the original complaint competent evidence for defendant as declarations made by plaintiff at variance with his claim on the trial applied to the deposition, and its exclusion was therefore error.

The judgment "must be reversed and a new trial ordered, with costs to abide the event.

Daly, Ch. J., and Pryor, J., concur.