Mayor of New York v. Roller — 65 N.Y. St. Rep. 281

Majority

p. 281

Mayor, Aldermen and Commonalty of the City of New York, App’lt, v. Emil Roller, Resp’t.

(New York Common Pleas, General Term,

Filed February 4, 1895.)

Headnote

Witness—Cboss-examination.

A party is not bound by the answers of a witness elicited upon cross-examination, when the evidence so adduced is relevant to a material issue.

Appeal from a judgment in favor of defendant, rendered by the justice without a jury.

Robert C. Taylor, for app’lt; Joseph I. Green, for resp’t.

This action was brought to recover a penalty alleged to have been incurred by defendant under section 153 of chapter 661 of the laws of 1893, whereby an individual who practices medicine without registration and qualification as required is made liable to the penalty of $50 for each such offense, the amount to be recovered by a duly-constituted medical society of

p. 282

•the county in an action brought in the name of the county. The ground of this appeal is that certain evidence was erroneously excluded when offered by the plaintiff in rebuttal. The plaintiff es.tablished a prima facie case against the defendant under the statute, and a motion to dismiss the complaint was made when plaintiff rested, and was properly denied. Defendant was sworn as a witness in his own behalf, and upon cross-examination testified, ■substantially, that he had never practiced medicine, in answer to categorical questions asked by plaintiff’s counsel. In rebuttal, the plaintiff called one Hahn, a former clerk of the defendant, and .his testimony, in contradiction of the defendant’s statements referred to, was sought to be elicited, but was excluded, under exception, upon the ground that such testimony had reference merely to collateral matter brought out by the plaintiff.

The ruling was obviously erroneous. The fact that defendant was not a registered physician, as required by the statute, was admitted by the answer, and the sole point of the litigation necessarily was directed to the fact of his having actually practiced medicine. It would be difficult to conceive of a case to which an is•sue was more strictly material than was that upon which questions were here excluded as dealing with collateral matter. Citation of authority for the proposition that a party is not bound by the answers of a witness elicited upon cross-examination when the evidence so adduced is relevant to a material issue seems hardly called for, but reference may be had to Andrews v. Newton, 3 N. Y. Wkly. Dig. 507; Bok v. Vincent, 12 Abb. Prac. 137 ; Van Tassel v. N. Y. L. E. & W. Railroad Co., 1 Misc. Rep. 299 ; 48 St. Rep. 767 ; Tayl. Ev. §§ 1438, 1439.

Judgment reversed, and new trial ordered, with costs to abide -event.

All concur.