Hoyt v. Lynch — 4 N.Y. Super. Ct. 328

Majority

p. 328

Hoyt v. Lynch.

Headnote

In order to test the credibility of a witness called to prove the plaintiff’s demand, it is competent to show by him that a transfer of the establishment in which the demand arose, made by him to the plaintiff, was a sham and fraudulent sale, and thus that the witness is really interested in the demand in question.

The evidence is admitted to impeach the witness, not to impeach the plaintiff’s title to the demand.

An order drawn at the foot of a bill rendered for services done, expressing a sum certain as due by the debtor in such bill, on a third person, requesting him to pay the bill, and charge it to such debtor, is a bill of exchange, which, by the statute, must be accepted in writing.

Jan. 23;

Feb. 24, 1849.

Assumpsit on an order drawn upon the defendant, with the common counts. At the trial, it appeared that Smith & Woglom, builders, erected certain buildings for the defendant, in Williamsburgh, in 1847. The plaintiff claimed to have tinned the roofs and put up the gutters for those buildings, and his bill

p. 329

for the work, rendered to S. & W. amounted to $300 88. They gave an order on the defendant, written- at the foot of the bill, as hereafter set forth. The order was presented by one Harris to the defendant, who said he could not pay it until he went and saw how the buildings progressed. The plaintiff then-proved by Harris, that- two or three days afterwards the defendant met the latter at the buildings, and- there promised to pay the order as soon as the sashes were put in, and those were put in early in Jauuary, 1848.

The bill and order, were read in evidence in these words, viz.:—

11 New York, 16th Déc., 1847.-

“ Messrs. Smith & Woglom,

“ To C. H. Hoyt, Dr.

" To tin roof, 86 feet by 37J feet, 3225 feet, at 7l¿ c. $241 87 112 of 3 in.-leader . 1-1-20

85 feet of copper gutter,. 4s. 6d„- „• 47 81

$300 88”

M Williamsíufgh, Dec. 16th, 1847.

a Mr. J. Lynch,

ci Please pay the above bill, being the amount for tinning your houses on South Sixth-street, and charge the same to our account,

“ And much oblige yours,

“ Smith & Woglom.”

On cross-examination of the witness Harris, he testified that he acted as agent or foreman for the plaintiff in doing the work for S. & W., and on making the bargain, he and plaintiff conversed with S. & W. about it. The contract was made with him as foreman for the plaintiff, and was not his, but the plaintiff’s. The latter had been principal in the shop from Oct. 28, 1847, when witness sold the shop to him, and he paid for it.For two or three years before, he had worked at wages there for the witness/

p. 330

The defendant’s counsel then asked the witness—“ Whát was the price and in what did you receive your pay, when you Sold out to -the plaintiff?”

This question was objected tb by the plaintiff’s counsel, and the objection sustained by the judge.

Defendant next asked—“ Were you not at the time of the sale to the plaintiff notoriously insolvent ?”

This question was objected to by the plaintiff’s counsel, and the objection sustained by the judge.

. The defendant’s counsel here offered ttLshowby this witness; that the sale by the witness tb the plaintiff was a sham and fraudulent sale. To this the plaintiff’s counsel objected, and the judge sustained the objection.

The counsel for the defendant duly excepted to all these decisions. '

Further evidence was given in the cause on both sides, which it is not necessary to state. • It was shown that Smith & Woglom failed January 10th, 1848, -and gave up their contract, without having completed the buildings.

The defendant moved for a nonshit which was denied j and the cause was ultimately submitted to the jury, who rendered a verdict for the plaintiff

The defendant moved for a new trial.

S. M. Meeker and J. E. Cary, for the defendant.

J. M. Van Cott, for the plaintiff.

We will first examine the question upon the admissibility of the evidence ruled out on the cross-examination of Harris.

The objection to this evidence was taken and presented to us, as if the action must fail,- if fraud were proved ; and in that aspect of the matter, the decision at the trial was right. But it manifestly appears that the inquiries made of the witness had another object, viz., to - show that Harris was the owner of this demand, notwithstanding-the.assignment; that the money, if recovered, would belong to him , and thus to show an inter

p. 331

est of Harris in the demand, such as the jury would regard in estimating the weight of his evidence. He proved the defend-, ant’s promise to pay the order, and his credibility was very mar terial to the plaintiff’s case. In this view of it, vfe think the questions ought to have been allowed by the judge. The answers sought would not have impeached the plaintiff’s -title to the demand, although they might have forced him to prove it by another witness. On this ground, there must be a new trial.

There was another question argued, which must arise on a new trial, and it is right that we should express our views upon it at this time. It is said that the order upon which the suit is founded, is a hill of exchange, and that there is no written acceptance of the same.

On consideration, we have come to the conclusion that this is a bill of exchange. It is an order in writing, drawn by one party on another, requesting the latter to pay a certain sum of money to a third party, at all events; depending upon no contingency, and payable out of no particular fund. It comes within the reason of the statute requiring a written acceptance to charge the drawee. It is true this order is not negotiable, but that is not necessary to make it a bill of exchange.

Now trial granted.