McIntyre v. . Clapp

31 N.Y. 569

• Court: New York Court of Appeals
• Decided: June 5, 1864
• Status: Published

Opinions

Davies, J.

The only question presented for consideration in this appeal is, as to the correctness of the ruling of the judge at the trial excluding the evidence offered by the defendant. The reason given by the judge for such exclusion, in his charge, is, that if the jury believed the testimony of Smith, then that evidence was improper, inasmuch as the defendant was estopped by the agreement testified to by Smith, from setting up the agreement offered to be given in evidence by him. But this was begging the very question which the jury had to decide; and if the proposition stated was a legal and correct one, it furnished no ground for the exclusion of the evidence offered. If sound, it was eminently proper to have so said to the jury, in commenting upon the effect of that evidence, but it furnished no ground for its exclusion. Smith’s testimony had been seriously impeached, and in one particular contradicted. The evidence offered by the defendant tended to weaken if not wholly to discredit it, and if it would not have had that effect, then it was admissible, as setting up a distinct and substantive cause of defense, and which it is conceded would have been available to the defendant, unless he had done something to preclude him from availing himself of it. This it is not pretended he had done, unless he was estopped from setting it up, and whether so estopped or not, depended entirely on the testimony of Smith. If he was not credited, then the foundation of the estoppel was gone, and the relevancy of the excluded testimony is conceded. The exclusion of the testimony, therefore, necessarily assumed the credibility of the testimony of Smith; thus drawing from the jury the consideration of that question, and deciding it by the court. This is in substance conceded by the judge in his charge to the jury. Without intimating any opinion as to the effect of the evidence, and whether or not the defendant would have been estopped, by the agreement testified to by Smith, if the jury should have found that such an agreement had in fact been made, I am clearly of the opinion that the testimony offered was improperly excluded, and that the order of the General Term granting a new trial should be affirmed.