Opinion
November, 1909.
Joseph T. Weed, for appellant.
George W. Watkins, for respondent.
The first question presented is whether the question to Wm. J. Hall, on cross-examination, as to conversation with Patrick Bulger was improperly admitted.
Every witness under cross-examination in any proceeding may be asked whether he has made any former statement relative to the subject-matter of the proceeding and inconsistent with his present testimony, the circumstances of the supposed statement being referred to sufficiently to designate the particular occasion. This rule only applies when the testimony of the adversary's witness which is to be contradicted is relevant to the issue. It is a general rule that the time and place of the supposed statement and the persons to whom or in whose presence it was made should be definitely presented to the witness' attention by the question put to him on cross-examination. This is commonly called "laying the foundation" for the introduction of the impeaching evidence; the object is to give the witness an opportunity either to deny having made the alleged statement, or, if he admits that he made it, to explain the alleged inconsistency. If such opportunity be not given, the evidence offered to show the contradiction is not admissible. Gaffney v. People, 50 N.Y. 416. See Ankersmit v. Tuch, 114 N.Y. 51; Pendleton v. Empire, etc., 19 id. 13; McCulloch v. Dobson, 133 id. 114.
The objection to the admission of this evidence, that it was immaterial and incomprehensible, is not strictly in point; but I think the objection to questions put to Patrick Bulger, that they were incompetent, irrelevant, immaterial; that no proper foundation had been laid for such testimony as attempting to impeach matters brought out on the cross-examination, etc., is sufficient to raise the question as to the admissibility of the evidence.
If a party desires to discredit a witness, by showing that he has made statements out of court in conflict with his evidence in court upon a material question in the case, the examining counsel should first lay the foundation for contradiction by asking the witness specifically whether he made such statements (Sloan v. New York Central R.R. Co., 45 N.Y. 125; Budlong v. Van Nostrand, 24 Barb. 25), and should so frame his question as to direct his attention to the particular time, place, subject or circumstance to which it relates.
The question put to the impeaching witness should, in general, be in the same language, substantially, as was used in calling the attention of the witness sought to be impeached to his former statements. This was not done, but the witness Bulger was asked to state what was said and allowed to answer against the appellant's objection. This I think was error.
As to the refusal of the justice to allow the defendant to call a witness in rebuttal of the witness Bulger, the contradictory statements proved for impeachment are legitimate for that purpose only; they are not evidence of the facts asserted therein (Plyer v. German Amer. Ins. Co., 121 N.Y. 689); and, after they have been proved, the witness sought to be impeached should have an opportunity of making explanation, in order that it may be seen whether there is a serious conflict, or only a misunderstanding or misapprehension. Sloan v. New York Central R.R. Co., 45 N.Y. 125; Gaffney v. People, 50 id. 416.
This opportunity was refused the defendant. For in every such case there are two questions: first, whether the witness ever did the act or used the expression alleged; second, whether his having done so impeaches his credit, or is capable of explanation.
It is manifestly unjust to receive the testimony of the adversary's witness to prove the fact, without admitting the party's witness to deny; and, assuming the act to have been done, or the expression to have been used, it would also be unjust to deny to the party, or the witness who admits the act or expression, the best or, it may be, the only means of explanation.
The usual and most accurate mode of examining the contradicting witness is to ask the precise question put to the principal witness; otherwise, hearsay evidence not strictly contradictory might be introduced, to the injury of the parties, in violation of legal rules. But this is a matter to some extent under the control and discretion of the court.
The jury's finding a verdict in favor of the plaintiff and against the defendant for four dollars, upon the evidence of witness Bulger, emphasizes the importance of a court's being careful in following well defined rules of law in the admission or exclusion of evidence.
I must hold that the judgment rendered by the justice on the verdict of the jury is erroneous, and the judgment must be reversed with costs.
Judgment reversed, with costs.