Doolittle v. Gambee

34 N.Y.S. 861, 88 Hun 364, 95 N.Y. Sup. Ct. 364, 68 N.Y. St. Rep. 795

• Court: New York Supreme Court
• Decided: July 5, 1895
• Status: Published

Opinion

MERWIN, J.

The main issue at the trial was whether the sale was to the defendant, or to her husband, Martin Gambee. Upon this subject the appellant claims that the finding of the referee is against the weight of the evidence. In this view, we have examined the evidence, and are of the opinion that the finding of the referee on the question of the sale and delivery should not be disturbed.

Our attention is called to a number of exceptions to rulings upon questions of evidence. The defendant owned an hotel. She and her husband lived in it. She looked after the kitchen and the cooking, and he looked after the outside work, the bar and billiard room, and the license was in his name. He had previously bought goods of the plaintiff, or of a firm of which the plaintiff was a member, that had not been fully paid for. The defendant offered to show that in the years 1892 and 1893 other parties had sold and shipped to the husband liquors and cigars, and looked to him for pay. This, being objected to, was properly excluded. The transactions of the husband with other parties did not affect the plaintiff.

The defendant offered to prove by one Goodman that the plaintiff, without his consent or authority, shipped to his (Goodman’s) wife liquors which were ordered by him. The time was not stated, and Goodman lived in a different place. This offer was excluded. We see no good reason for admitting the evidence. The issue here was whether the defendant ordered the goods.

One Wilson was the main witness of the plaintiff in regard to five of the six sales of goods in controversy. The defendant claims that she was unduly restricted, by the rulings of the referee, in her efforts to discredit the testimony of Wilson. The plaintiff, in making out his case called Wilson as a witness, and he was then cross-examined at length, and his cross-examination was apparently completed. After the plaintiff rested his case, and after the defendant introduced most of her evidence on the main issue, the defendant applied for and obtained leave to amend the answer by setting up full payment of plaintiff’s claim. Then, apparently at an adjourned -day, the defendant called Wilson as a witness, and examined him on the subject of payments made to him as the agent of the plaintiff, .and showed by him that a number had been made that were not credited in full, or at all, by the plaintiff in the complaint. After examining Wilson as to the payments, no other witness being called by the defendant on the subject, the counsel for the defendant, for the purpose of discrediting the testimony given by Wilson on the former hearing, offered to show by him that while he was acting for plaintiff he made statements to one Goodman that contradicted his -evidence while 'upon the stand in regard to Mr. Gambee and the account in this action. This was objected to as improper, irrelevant, immaterial, and hearsay, and as reopening the case, and also that the witness is now called by the defendant, and she cannot cross-examine her own witness as to statements made by him to somebody else for the purpose of discrediting him. The objections were sustained, the court saying that specific questions might be put, and then ruled upon. The following questions were then asked:

“Q. Did you say to Mr. Goodman, in a conversation that you had with him in reference to this account of Mr. Gambee’s, that you did not know what you were going to do with Mart (meaning Martin Gambee)? That you only got barely enough to pay your livery, and a little over?” “Q. Did you say to him, upon an occasion, and in reference to this account, before the commencement of this action, and subsequent to the time of the conversation concerning which the last question was put, that Martin was doing better,—that he had paid the ■account down pretty well?”

These were objected to as improper, and objection sustained, and -exception taken.

The defendant, by calling Wilson as to the payments, made him her own witness, as to the new matter. People v. Oyer and Terminer County Court of N. Y., 83 N. Y. 459. Whether this precluded her from discrediting him as to his former evidence, is not entirely •clear. People v. Moore, 15 Wend. 419; Mather v. Parsons, 32 Hun, 338, 343; Sawrey v. Murrell, 2 Hayw. (N. C.) 397; Barker v. Bell, 46 Ala. 216, cited in Starkie, Ev. (10th Ed.) 244. Assuming it did not, then the examination as to the statements of the witness is to be deemed cross-examination, and it was an effort to recross-examine after the witness had been once fully cross-examined and dismissed, .and upon another day. Ordinarily the extent of such cross-examination is discretionary. Van Cort v. Van Cort, 4 Edw. Ch. 621; Sheldon v. Wood, 2 Bosw. 269; Knight v. Cunnington, 6 Hun, 100. The statements in the question put, if made by Wilson, were not necessarily inconsistent with his testimony that the orders were given by the defendant. Concededly, all the payments were made by the husband, and he was the manager of the concern. Under the circumstances presented, we are of the opinion that no error was committed.

A number of disparaging questions were put to the witness as to his relations with the plaintiff in regard to the misappropriation of moneys collected by him as agent, and these were properly excluded, within the rule laid down in President, etc., v. Loomis, 32 N. Y. 127. A witness was asked whether Wilson ever stated to him that he had straightened up or fixed up with the plaintiff, and had given him a bond for the money he had collected, or was to collect. This was not important, and was properly excluded. The defendant sought to prove by one Babcock certain specific acts of Wilson, that, as defendant claimed, affected his credibility. The case of Conley v. Meeker, 85 N. Y. 618, sustains the ruling of the referee excluding the evidence. The defendant sought to prove the general character of Wilson, but, as the objection to it by the plaintiff seems to have been waived before the witness left the stand, the defendant was not prejudiced by the ruling of the referee on the subject. We find no good reason for disturbing the judgment, and it should be affirmed.

Judgment affirmed, with costs. All concur.