Titus v. . Sumner

44 N.Y. 266, 1870 N.Y. LEXIS 150

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] It is enough to say that the refusal at circuit to permit the witness on his cross-examination to testify whether he believed any of the statements made by the defendant about the plaintiff's daughter was harmless, inasmuch as the witness during the same cross-examination testified that he did not believe she was poisoned. The offer to prove by the same witness during that cross-examination that the plaintiff's reputation was not affected by these statements was properly rejected for two reasons, viz.: The evidence, if admissible, was a part of a substantial defence to a cause of action already established, which the court had the right to exclude until after the plaintiff had rested his case. It was not an offer to show that the plaintiff was not injured by reason of any defect in his own reputation, nor was any error committed in admitting evidence of the words spoken in 1861 and 1863. Each, if actionable, was outlawed, and admissible upon the question of malice, and hence the order denying a new trial must be affirmed.