Simmons v. Richardson

Appeal from a judgment in favor of the plaintiff entered upon the report of a referee.

The plaintiff claimed to recover for services rendered by him for the defendant, and at his request. It is claimed by plaintiff that certain moneys he had received of defendant were payments on account of the plaintiff’s claim. The defendant claimed that the moneys were loaned by him to plaintiff, and were much larger in amount than were admitted by plaintiff. Upon this issue the defendant testified that he had kept an accurate account of date and amount, and had delivered the same to his attorney, and that it was lost. To meet this proof the plaintiff offered several witnesses, who testified that defendant had told them, or had said in their presence, that he kept no account of the moneys, for fear his wife would know of the subject of his employment. Defendant offered himself in rebuttal to deny these alleged declarations, and was not permitted to testify, upon the ground that his case was closed.

The General Term held, that this was error; that defendant had a right to meet any new matter which had been proven antagonistic to his defense; that his declarations that he had kept no account, if made, conclusively destroyed his evidence as to the bill of items, and affected his general credibility as a witness, and that he had the right to deny the truth of the declarations so alleged to have been made by him.