Wolkoff v. Tefft — 59 N.Y. Super. Ct. 52

Majority

p. 52

JACOB WOLKOFF, Appellant v. WILLIAM TEFFT, et al., Respondents.

Headnote

Witness—Testimony, immateriality and irrelevancy of.

The plaintiff was a witness in his own behalf. On his cross examination he testified that he had been arrested about some coats; that a party that was with him stole the coats, and that he, the plaintiff, was arrested and convicted, and served a term in the House of Refuge. On the re-direct examination he was asked, Were you guilty or innocent of that transaction P The counsel for defendants did not object to the form of the question but objected to it as immaterial and irrelevant, and the objection was sustained and plaintiff’s counsel excepted to this ruling.

Held, that this ruling was error. That the witness had aright to show his innocence and, if impossible, relieve himself from the unfavorable inferences that might be drawn from the facts of his conviction. No record of the conviction was produced, but if it had been it would not have been conclusive of the plaintiff’s guilt.

Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

Decided January 5, 1891.

Appeal from judgment upon an order dismissing the complaint, and from an order denying plaintiff’s motion for a new trial upon the judge’s minutes.

Henry Morrison, for appellant.

Palmer & Boothby, for respondents.

The plaintiff was a witness in his own behalf as to important matters. On his cross-examination he testified that he had been arrested about some coats; that a party he was with stole the coats, and that he, the plaintiff, was arrested and convicted and served his term in the House of Refuge. On re-direct examination, he was asked, Were you guilty or innocent of that transaction ? The counsel for defendants did not object to the form of the question, but objected to it as immaterial and irrelevant. The witness had a right to show his innocence and, if possible, to relieve himself from the unfavorable inferences that might be drawn from the facts of his conviction. No record of that had been produced, but if it had been, it would not have been conclusive of plaintiff’s guilt. Sims v. Sims, 75 N. Y. 467 .

Judgment and order reversed and new trial granted, with costs to abide the event.