Doolittle v. Gambee

J. — The main issue at the trial was whether the sale was to the defendant, or to her husband, Martin Gambee. Upon this subject the appellant claims that the finding of the referee is against the weight of the evidence. In this view, we have examined the evidence, and are of the opinion that the finding of the referee on the question of the sale and delivery should not be disturbed.

Our attention is called to a number of exceptions to rulings upon questions of evidence. The defendant owned an hotel. She and her husband lived in it. She looked after the kitchen and the cooking, and he looked after the outside work, the bar and billiard room, and the license was in- his name. He had previously bought goods of the plaintiff, or of a firm of which the plaintiff was a member, that had not been fully paid for. The defendant offered to show that in the years 1892 and 1898 other parties had sold and shipped to the husband liquors and cigars, and looked to him for p iv. This, being objected to, was properly excluded. The transactions of the husband with other parties did not affect the plaintiff.

The defendant offered to prove by one Goodman that the plaintiff, without his consent or authority, shipped to his (Goodman’s) wife liquors which were ordered by him. The time was not stated, and Goodman lived in a different place. This offer was excluded. We see no good reason for admitting the evidence. The issue here was whether the defendant ordered the goods.

One Wilson' was the main witness of the plaintiff in regard to five of the six sales of goods in controversy. The defendant claims that she was unduly restricted, by the rulings of the referee, in her efforts to discredit the testimony of Wilson. The plaintiff, in mak

l'Q. Did you say to Mr. Goodman, in a conversation that you. had with him in reference to this account of Mr. Gambee’s that, you did not know what you were going todo with Mart (meaning Martin Gambee) ? That yon only got barely enough to pay your livery, and a little over ?’’ “Q. Did you say to him, upon au occasion, and in reference to this account, before the commencement of this action, and subsequent to the time of the conversation concerning which the last question was put, that Martin was doing better — that he had paid the account down pretty well ?”

These were objected to as improper, and objection sustained,, and exception taken.

The defendant, by calling Wilson as to the payments, made him. her own witness, as to the new matter. People v. Oyer and Terminer County Court of N. Y, 83 N. Y. 459 . Whether this pre-" eluded her from discrediting him as to his former evidence, is not. entirely clear. People v. Moore, 15 Wend. 419 ; Mather v. Parsons, 32 Hun, 338 , 343; Sawrey v. Murrell, 2 Hayw. (N. C) 397; Barker v. Bell, 46 Ala. 216 , cited in Starkie. Ev. (10th ed.) 244. Assuming it did not, then the examination as to the statements of the witness is to be deemed cross-examination, and it was.an effort to. recross-examine after the witness had been once fully cross-examined and dismissed, and upon another day. Ordinarily the extent of such cross-examination is discretionary. Van Cort v. Van Cort, 4 Edw. Ch. 621 ; Sheldon v. Wood, 2 Bosw. 269 ; Knight v. Cunnington, 6 Hun, 100 . The statements in the question put, if made by Wilson, were not necessarily inconsistent with his testimony that the orders were given by the defendant. Concededly, all the payments we'ré made by the husband, and he was-

A number of disparaging questions were put to the witness as to his relations, with the plaintiff in regard to the misappropriation of moneys collected by him as agent, and these were properly excluded, within the rule laid down in President, etc., v. Loomis, 32 N. Y. 127 . A witness was asked whether Wilson ever stated to him that he had straightened up or fixed up with the plaintiff, and had given him a bond for the money he had collected, or was to collect. This was not important, and was properly excluded. The defendant sought to prove by one Babcock certain specific acts of Wilson, that, as defendant claimed, affected his credibility. The case of Conley v. Meeker, 85 N. Y. 618 , sustains the ruling of the referee excluding the evidence. The defendant sought to prove the general character of Wilson, but, as objection to it by the plaintiff seems to have been waived before the witness left the stand, the defendant was not prejudiced by the ruling of the referee on the subject. We find no good reason for disturbing the judgment, and it should be affirmed.

Judgment affirmed, with costs.

All concur.