Funson v. Salisbury

15 A.D. 214, 44 N.Y.S. 205

Opinion

Herrick, J.:

I think the exclusion of the evidence offered was error.

The testimony offered was not independent affirmative evidence of a transaction between the defendant and the deceased for the purpose of establishing an affirmative defense, but was for the purpose of contradicting the testimony of the witness Leonard by showing that what he testified to, to wit, seeing a bill of sale signed by the defendant, could not be true.

It does not come within the spirit of section 829 of the Code of Civil Procedure, which was to prevent the survivor of an interview from giving a version of it that could not be contradicted. (Holcomb v. Campbell, 118 N. Y. 46, 54.)

The defendant had a right to contradict the evidence of the witness' Leonard by testifying to facts showing that his story could not be true, even although the ultimate result of such testimony was to negative the occurrence of a personal transaction between himself and the deceased. (Pinney v. Orth, 88 N. Y. 447; Lewis v. Merritt, 98 id. 206, 210.)

The judgment and order should be reversed and a new trial granted, costs to abide the event.

All concurred.

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