Harris v. Landay Bros.

97 Misc. 14

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 15, 1916
• Status: Published

Opinions

Shearn, J.

Plaintiff sues on an assigned claim to recover commissions due one Silverman for selling phonographs. Defendant’s claim is that'Silvérman pretended to get orders from a dealer who was entitled under the schedule of prices to cheaper prices than retail dealers were entitled to and then sold the goods to retailers, thus swelling his commissions and in some cases pocketing the proceeds. The defendant, ultimately finding that it had no claim either against the dealer or against the retailers, counterclaimed for the value of the goods that it had shipped pursuant to this alleged fraudulent claim. In one instance, Silverman on cross-examination admitted that he had collected money from a retailer which he had not turned over to the defendant and said that he could not tell-in how many instances this had occurred. He claimed, however, that he had turned over the money to one Davis, the dealer who was charged with the goods and who was defendant’s supposed customer. Davis flatly denied this. Obviously, Silverman’s honesty and veracity were sharply in issue and of controlling importance. Nevertheless, the court refused to permit the defendant to impeach Silverman on cross-examination by asking him whether in his employment preceding that by the defendant he had collected money belonging to that employer and failed to turn it over. If Silver-man had denied this, the defendant could not have contradicted the answer, but if he had admitted the fact it would naturally have resulted in a verdict for the defendant where the issue turned upon the question of his honesty. The error is manifest and it was prejudicial.

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

Guy, J., concurs.