Hardt v. Schulting

Headnote

Evidence — Intent—False representations— when questions as to, material.

Appeal from a judgment in favor of tbe defendant, entered upon tbe trial of this action by tbe court without a jury.

This action was brought to set aside a release given by tbe plaintiff to tbe defendant on tbe ground that tbe same was procured by false and fraudulent representations made by tbe defendant. Tbe case is in all respects similar to that of Dambmcm v. Sehulting ( 12 Hun, 1 ). Hpon tbe trial tbe following questions were asked by tbe plaintiff of tbe witness, Frederick A. Yon Bernutb: “Did you sign that release in consequence of representations made in

August “ Did be at the time you signed this release say any thing to vary his previous statements as to his property ? ” They were objected to by the defendant’s counsel and excluded by the court, and the plaintiff excepted to the ruling.

The court at G-eneral Term said : “We think the learned justice erred in not allowing the witness to answer the questions. The questions did not call for a bare opinion of the witness or a mere mental operation. They called for a fact material to the issue upon trial. It has been repeatedly held that in a proper case the intention which prompted an act or the belief entertained in regard to the truth of a statement upon which a witness acted, may be proved by asking the direct question without resorting to conversations or circumstances. (Thorn v. Hel/mer, 2 Keyes, 27, 30; Berrian v. Scmford, 1 Hun, 626 ; Caspar v. O’Brien, 15 Abb. [N. S.], 402; Raynor v. Page, 2 Hun, 652 ; Thurston v. Cornell, 38 N. Y., 281 ; MeKown v. Hu/nter, 30 id., 625.”