Stanley v. Pickhardt — 57 N.Y. Super. Ct. 147

Majority

p. 147

WILLIAM STANLEY, et al., Respondents, v. WILLIAM PICKHARDT, et al., Appellants.

Headnote

Trial, conduct of .—Questions properly ruled out.—Transactions between defendants and third parties, when admissible on behalf of plaintiff.

Questions of the following character: “What was the agreement ?” “What was the understanding?” “For what purpose was a check

given ? ” are properly ruled out.

In an action brought to recover compensation for legal services rendered in an action, defendants claimed that they were not to pay therefor, but that one Webster was to, and in support of this claim one of the defendants on direct examination testified, among other things, that he told Mr. Clark, one of the plaintiffs, that the defendants had an arrangement with Webster; that Webster had to see to the action as far as he was concerned, and had to pay all the expenses, except those of Mr. Smith, who was to be their personal counsel in the matter, which the defendants were to pay.

p. 148

Held, that, on cross-examination, interrogatories to the witness as to payments by defendants of divers expenses connected with the action, other than those of Smith, were properly allowed.

Before Sedgwick, Ch. J., Fbeedman and Tbuax, JJ.

Decided June 28, 1889.

Appeal by defendants from judgment entered on report of referee.

The facts sufficiently appear in the opinion and the head notes.

C. Bainbridge Smith, attorney and of counsel, for appellants.

Stanley, Clarke & Smith, attorneys, and Edwin B. Smith, of counsel, for respondents.

The main objection to the judgment, as urged, is that it is not supported by the evidence. There was explicit testimony, which, if the referee believed it, required him to find for the plaintiffs. In support of this were facts and inferences which corroborated that testimony. Against it was other testimony, directly and inferentially contradictory. A review of the case does not produce a result different from that reached by the referee.

There was a class of exceptions which were not valid, because the rulings to which they were made were that witnesses cannot testify to matters of opinion or inference or law, such as, what was the agreement or understanding, instead of what was said and done between the parties, or the purpose for which the check was given, instead of the particulars of the transaction.

Another class of exceptions comprise cases where the referee allowed questions to be put to one of the

p. 149

defendants as a witness, calling for the fact of his-paying other claims like the one in action. These questions were put on the cross-examination. On the direct examination the witness had given testimony, that he had said to one of the plaintiffs that the defendants had a contract with one Webster; that the latter should pay all expenses in a certain suit, and this might have been used not only to contradict witnesses for plaintiffs, but also to show that defendants had no motive or interest to make the contract in action which related to the expenses. On cross-examination the plaintiffs had a right to neutralize or modify this by showing, if possible, that all other expenses had been paid by the defendants. And this right of plaintiffs was connected with their competent attempt, to show, by the same questions, that the contract with Webster concerned other subject-matter than that of the contract in this action.

No exception in the case should be sustained.

Judgment affirmed with costs.