Cullinan v. Furthmann

3 Liquor Tax Rep. 575

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1905
• Status: Published

Opinion

The verdict of the jury was not against the weight of evidence. The positive testimony of plaintiff’s two witnesses was only contradicted by defendant Furthman, and his denial was of the most general, indefinite and evasive sort. (Cullinan v. Kisselbrack, 43 Misc. 103; Culhane v. City of New York, 60 N. Y. 133; S. C., 67 Barb. 562; Tolman v. Syracuse, 27 Hun, 325.) Plaintiff’s special agents are not to be considered detectives, nor is their testimony to be subject to the scrutiny given to detectives’ testimony. (Cullinan v. Trolley Club, 65 App. Div. 202; Cullinan v. Rorphuro, 93 App. Div. 200.) The. jury passed upon the conflicting evidence, and the verdict should not be disturbed. (Baylies’ New Trials and Appeals, p. 401; Hayes v. Thompson, 2 Hun, 518; Chaffee v. Morse, 2 Hun, 602; Perry v. Lansing, 17 Hun, 34; Duffus v. Schwinger, 92 Hun, 70.) It was not error to show that plaintiff's special agents had taken the oath of office, and filed the bond required by law. (Liquor Tax Law, § 10; Public Officers’ Law, § 10.) It was not error to exclude evidence as to how many saloons were in the vicinity of defendant’s place, or to exclude the witnesses’ opinion as to whether it was respectable, or as to the character1 of the neighborhood. The application of the rule that the cross-examination of a witness is limited to the facts and circumstances stated in the direct examination, is left largely to the discretion of the court. (Abbott’s Trial Brief, Civil Jury Trials, p. 160; Neil v. Thorne, 88 N. Y. 275; People ex rel. Phelps v. Oyer and Terminer, 83 N. Y. 436; Rheinfeld v. Dahlmann, 19 Misc. 162.) The cross-examination of plaintiff’s witnesses as to testimony given in the criminal trial of defendant Furthmann, was properly restricted. (Abbott’s Trial Brief, Civil Jury Trials, p. 167; Bank v. Slemmons, 34 Ohio St. 142; Bissel v. Starr, 32 Mich. 297; Bird v. Hudson, 113 N. C. 203.) To examine a witness in regard to his testimony at a previous trial, he must be confronted with the question and answer as to a specific statement, and asked whether he was asked such question and gave such answer thereat. (Abbott’s Trial Brief, Civil Jury Trials, p. 177; Yaugh Machine Co. v. Quintard, 37 App. Div. 368; Weymouth v. B’way R. R. Co., 2 Misc. 506. It was immaterial whether any rebate had been paid on the certificate issued to defendant after the time when plaintiff claims defendant violated the law, and the exclusion of testimony on that point was proper. It was also immaterial whether proceedings were instituted to revoke such certificate on the application for such rebate. (Matter of Lyman v. Scharmann, 32 Misc. 62.) These points were made on the first appeal in this case, and disregarded. (Cullinan v. Furthmann, 70 N. Y. 110.) The charge of the court that the plaintiff and the special agents had no financial interest whatever in the outcome of this case, was proper. (Cullinan v. Trolley Club, 65 App. Div. 202.) The charge of the court relative to the defendant’s failure to produce certain witnesses, was proper. (People v. Dyle, 21 N. Y. 578; Bleecker v. Johnson, 69 N. Y. 309; Brooks v. Steen, 6 Hun, 516; Barrows v. Hodgkins, 4 Weekl. Dig. 430; Clark v. N. Y. Ry. Co. 40 Hun, 605; Ripley v. Second Av. Ry. Co., 8 Misc. 449.) The Trial Court’s reference to a possible complaint to the State Commissioner of Excise which resulted in the investigation by the latter’s special agents, is not a reversible error. (Muetze v. Tuiner, 77 Wis. 236.) As a whole, the charge clearly and concisely advised the jury concerning the evidence applicable to the issue. (Abbott’s Trial Brief, Civil Jury Trials, p. 438; Denver Tramway Co. v. Owens, 20 Colo. 107; Chicago & A. R. Co. v. Pontiac, 169 Ill. 155.) A charge is not to be judged by isolated statements. (Schreiber v. Twenty-third St. Ry. Co. 27 Weekl. Dig. 192; Spring v. Miller, 16 N. Y. 407; Meyers v. Dean, 132 N. Y. 65; Hickenbottom v. D. L. & W. R. R. Co., 122 N. Y. 91; Caldwell v. M. J. Steamboat Co., 47 N. Y. 282; Randall v. Packard, 142 N. Y. 47.)

The judgment was right, and should be affirmed. •,

Judgment and order affirmed, with costs. No opinion.