Rocke v. Meiner — 34 N.Y. Super. Ct. 158

Majority

p. 158

ANNA ROCKE, Plaintiff and Appellant, v. GERD. D. MEINER, Defendant and Respondent.

Headnote

Witkess.—Pabties As.

1. Cross-examination of .—Line of, what and when permissible.

a. When a plaintiff rests his case on proof of presentment of a bill to the defendant and his promises to pay, and the defendant testified that he promised to pay only for what he had received, and then proceeded to testify as to what he had received, it is proper to ask questions on cross-examination, the tendency of which is, if answered in the affirmative, to show that' defendant had received more than he testified to on his direct.

1. If the defendant had confined himself strictly to negativing the promise to pay, such question would not have been admissible on cross-examination, but only as evidence in chief ; and as they would re-open the case, their admission would have been in the discretion of the trial judge.

2. Questions to party on cross-examination not objectionable as calling for a conclusion of law.

a. The inquiry being whether the defendant had received from the plaintiff more beer than he had testified to on his direct examination, he maybe asked on cross-examination, “Was any beer received by you from Mr. A. B.’s cellar belonging to the plaintiff ?”

1. The introduction of the words, “ belonging to the plaintiff,” does not render the question objectionable as calling for a conclusion of law.

Before McCunn and Jones, JJ.

Decided December 30, 1871.

Appeal from judgment.

This action is brought to recover one hundred and forty-eight dollars and fifty-seven cents'for lager bier sold and delivered to defendant by plaintiff, at an agreed Drice.

p. 159

The answer admits the purchase of six and a half barrels of beer at eleven dollars and fifty cents a barrel!—amounting in all to eighty-six dollars and twenty-five cents; it avers a return of three-quarters and one-sixteenth of a barrel, on the understanding that the price of the returned beer, being ten dollars and fifty-,six cents, should be applied on the whole bill of eighty-six dollars and twenty-five cents, and reduced it to seventy-five dollars and seventy-one cents; it avers a tender of said seventy-five dollars and seventy-one cents before suit brought, and denies all the allegations of the complaint except those admitted.

On the trial the plaintiff, to sustain her action, gave evidence that a bill for one hundred and forty-eight dollars and fifty-five cents was presented to the defendant, and that he promised to pay it; and then rested her case. The defendant, being called as a witness, did not confine himself to a simple denial of a promise to pay the bill as presented, but went further, and testified that he promised to pay for what was bought by, and delivered to, him, but no morethat twenty-four quarter casks and nine-sixth casks were delivered to him at eleven dollars and fifty cents or twelve dollars, and he returned three-quarters and one-sixth, casks, and that he had offered to pay seventy-five dollars.

On his cross-examination, he was asked a series of questions. Among them the following:

State whether you received any other beer belonging to Mrs. Bocke from Mr. Buder’s cellar ?

Did you receive any beer belonging to Mrs. Bocke besides what the carman delivered ?

Has any been received by you from Mr. Buder which belonged to Mrs. Bocke ?

Did you receive and promise to pay for any beer belonging to Mrs. Bocke which had been stored in Mr. Buder’s cellar, and which you received from Mr. Buder ?

p. 160

These several questions were duly objected, the objection sustained, and plaintiff excepted.

The jury rendered a verdict for plaintiff for seventy-five dollars. A motion was made by plaintiff for a new trial, which was denied, with ten dollars costs. The defendant having offered to allow judgment for eighty-six dollars and twenty-cents, with interest and costs, judgment was entered in favor of defendant for the difference between the verdict and the costs, being five dollars and ninety-six cents.

From this judgment, and the order denying the motion for a new trial, plaintiff appealed to the general term.

George Carpenter, for appellant.

G. D. Sewards, for respondent.

If the defendant had confined his testimony to a denial of the alleged promise to pay the amount of the bill alleged to have been presented to him, then the above questions would not have been in the nature of a cross-examination, and would have been inadmissible in that character ; they would, in that event, have been receivable only as questions put to the witness by the plaintiff as a witness called on his own behalf. As such, they would operate to re-open the plaintiff’s affirmative case after defendant had closed, and so operating it would have been entirely in the discretion of the judge whether to permit them or not.

But the defendant went further in his testimony. He testified, on his direct examination, as to the amount of beer he claimed to have received. It was, therefore, proper cross-examination to prove out of his own mouth that he had received more than he admitted to on Ms direct examination. •

The excluded questions had a tendency to show the reception by defendant of more beer than he aoknowl

p. 161

edged in Ms direct testimony, and thus contradict and show the unreliability of the direct testimony.

They should therefore have been admitted, unless there is some objection to the form.

It is suggested that the introduction of the words, “belonging to Mrs. Roche,” rendered the form objectionable because they made the questions call not for a fact, but for a conclusion of law on a variety of facts.

This objection," however, is fully answered by the cases of Sweet v. Tuttle, 14 N. Y. 465 -471; Carnes v. Platt, 6 Robt. Superior Ct. 270-286.

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

Cases cited

Sweet v. Tuttle 14 N. Y. 465 N.Y. p. 161