Dudley v. Satterlee — 59 N.Y. St. Rep. 265

Majority

p. 265

Augustus P. Dudley, Resp’t, v. Herbert L. Satterlee, as Executor, etc., App’lt.

(New York City Court, General Term,

Filed May 18, 1894.)

Headnote

1. Appeal—Direction op verdict.

The court should not direct a verdict for plaintiff upon the testimony of a witness, hostile and adverse to defendant, though it constitutes the entire evidence in the case.

2. Witness—Impeachment—Contradiction.

A party has' the right, for the purpose of discrediting the testimony of an adverse and hostile witness, to prove statements made by him contradicting the testimony given by him, after the requisite examination of the witness in regard to such statements, whether they are statements pf fact or expressions of opinion.

Appeal by defendant executor from judgment on verdict for $310 for plaintiff for medical seriviees rendered by him to a third person at the request of the testator, and the jury having been instructed by the court that they must find for $200, and could find for the larger sum provided that certain additional services were performed at testator’s request.

R. E. Deyo and G. H. Kracht, for app’lt; Shepard & Prentiss, for resp’t.

The doctor, plaintiff sues the executor of Travers to recover the value of his services as attending physician and operating surgeon, to one Mrs. Davis, at the request of the testator, both of whom died before the trial of the cause. The court’s direction to the jury to find certainly for" $200, and their finding as to the additional sum rests entirely upon the testimony of the lawyer witness called on plaintiff’s behalf, and as his testimony became, by the decease of both Mrs. Davis' and Travers, incapable of contradiction, he must be subjected to the severest scrutiny as regards the credibility of his evidence, and of necessity such inquiry can only be made in the light shed from his own testimony, and by which he says: that he was a lawyer, that before and at the time of the conversation which he says he heard between the testator and Mrs. Davis, he was the general counsel

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of the testator in all matters except those involved in this action, and continued to act as, such general counsel until about the time this action was commenced, that he did act as professional adviser to the testator before his death, in reference to this very claim, then made by the doctor agains't Travers for such, attendance on Mrs. Davis, but not until after this conversation between her and the testator had been overheard by him, and, finally, that he now has pending an action against this defendant as Travers’ executor, for a claim of $4,000 Tor his legal services rendered as general counsel to such testator, and in which is included an item for his legal services and consulations with testator in reference to the claim herein involved. Artd he then, over defendant’s objection and exception, was allowed to testify that he overheard a conversation between the testator and Mrs. Davis in which she said that Dr. Dudley had said that he would perform the surgical operation on her with the necessary attending services for $200, and that she then asked Travers, “ Will you pay for it ?” and he answered that he would. Assuming that this evidence was properly admitted," in view of the fact that he positively swore that at the time of this conversation he had not been retained or consulted by the testator in reference to this*particular matter, nevertheless the verdict as to this $200 should not have been directed by the court on his uncorroborated testimony. If the relation between him and the estator was not that of lawyer and client, it certainly approached it very closely and was extremely intimate and confidential. He was an adverse witness as regards a transaction with two persons who were both dead, and one of them defendant’s testator. He was a hostile witness who, himself, had an action pending against this defendant for $4,000 for legal services rendered to the testator as his genera] counsel and as his special counsel in this very controversy, subsequent, however, to the conversation. The defendant, under the circumstances of this case, was entitled ft) have the jury pass upon the credibility of this hostile and adverse witness, and, as their finding as to the additional sum, was dependent upon the truth of his testimony, the entire case should have been submitted to the jury; and, moreover, an error was committed in not allowing defendant to properly impeach the credibility,of this witness. While under'cross-examination he testified that he remembered going, with the testator, to see Dr Butts, after Dr. Dudley’s claim had been presented, but that he did not state to Dr. Butts that Mr. Travers did not owe this bill to Dr. Dudley, and yet, when the defendant called Dr. Butts, the only witness who could in any way contradict him, as death had silenced the lawyer’s client and the doctor’s patient, he, too, was silenced, on an objection from plaintiff by an erroneous ruling!' Dr. Butts testified that he knew this witness; “ He called at my office with Mr. Travers after Mr. Dudley had threatened to bring suit ? ’’ and lie was quesstioned by defendant’s counsel: “ Was the subject of this suit a matter of conversation between you and this witness?” Plaintiff objected to this question and he was sustained, to which defendant’s counsel excepted, and said : “ I propose to show that this witness, in this interview with Dr. Butts said that Dr. Dudley had no claim

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against Mr. Travers,” and the same was excluded, to which defendant excepted. The rule as regards the impeachment of the credibility of an adverse and hostile witness is : A party has the right, for the purpose of discrediting the testimony of an adverse and hostile witness, to prove statements made by him contradicting the testimony given by him after the requisite examination of the witness in regard to such statements, and it matters not whether it be a statement of a fact or the expression of an opinion, if it be adverse to the story which he has narrated. See Schell v. Plumb, 55 N. Y. 592 , and read the irrefutable reasoning on this subject of Pryor, J., in Effray v. Masson, 45 St. Rep. 296 ; 18 N. Y. Supp. 353 . The judgment and order appealed from are reversed, with costs to appellant to abide the event.

Ehríich, C. J. and McCarthy, J., concur.

Cases cited

Schell v. Plumb 55 N. Y. 592 N.Y. 1874-02-03 p. 267