Elliot v. Luengene , 44 N.Y.S. 775 ( 1897 )

McCarthy, J.

The principal issue between the parties herein was whether the goods claimed were sold or -consigned to the defendant. The evidence was conflicting, and the jury under a fair and impartial charge having found against the defendant and in favor of the plaintiffs- settles the question so far as we are concerned.

We are then to consider the question of irregularity raised and the exceptions taken at the trial. We, of course, can only pass on the record before us and do not think there is sufficient to urge us in the matter of the irregularity claimed and particularly under the statement of the court, as follows (when a motion was made to discharge the jury):

“ The Court.— I will instruct the jury that they will disregard anything said by the plaintiffs’ counsel concerning, a former trial of this case, and its results, and that the jury will only consider the fact and circumstances that are concerned in this ease as the witnesses will bring them out in their testimony and that alone they will consider.”

It was and would be improper for the plaintiffs’ counsel to state to the jury that course and result of the former trial, and if such a statement appeared in the record it would have been sufficient to reverse the judgment, but we do not think the statement of the plaintiffs’ counsel at the opening and as appears by the record “ that an appeal from a former trial of this case was taken by the defendant ” is sufficient.

The testimony of. Stahl at the close of the case was in some respects in contradiction of the defendant and therefore rebuttal. The admission of this and the rest was within the sound discretion of the court (Fell v. Locomotive Works, 20 N. Y. St. Rep. 577, 579), and we do not think it was improperly exercised. 84 N. Y. 672.

A witness, a member of the firm of F. Vogel & Co., who assigned the first cause of action to the plaintiffs, was being examined and who said he assigned it.

At folio 40, page 14, the following took place during his examination:

“ I ask you again whether or not you have any interest in the result of this litigation? A. Yes, sir; that interest is satisfaction; if there is any money coming to me, I should like to take it.

“ Q. How is any money to come to you?

“ Objected to as incompetent, and further that the answer to the complaint failed to allege, that the plaintiffs were not the real party in interest.

“ Defendant’s counsel.— I don’t ask the question for the purpose of setting up any such defense, but I ask it for the purpose of showing to the court and the jury that this witness is an interested witness; that he is interested in the result of the action.

“ The Court.— I will sustain the objection.

“ Defendant’s counsel excepts.”

This was error when-the purpose was explained by the defendant’s counsel. It was to attack the witness’ interest and thus his credibility.

The bias of an assignor may be shown by proof of a remaining or a contingent interest. Abbott’s Trial Brief, 10.

And a party who assigns a claim and becomes a witness to prove it places • himself in a position where his evidence is to be looked at with more' doubt than in other cases, for when such person' is contradicted on a material matter he cannot complain that credit is withheld from him. - Watkins v. Cousall, 1 E. D. Smith, 65, 66. And the credibility of the witness is a matter to- be submitted to the jury for their determination. Condit v. Sill, 44 N. Y. St. Repr. 284; Gildersleeve v. Landon, 73 N. Y. 609; Wohlfahrt v. Beckert, 92 id. 490; 102.id. 93.

Again, at page 19, folio 55, the following took place:

“ Q. The juror asked you 'whether there was an original bill sent previous to this' one. Did you see any bill prepared in your, establishment about the'time these goods were sent away? A. Yes, sir.

“ Q. Look at the paper which I show you and state whether or not it is a copy of the bill which you saw prepared at that time? (Presenting paper.) A. Yes, sir, I saw . the bookkeeper write it.

Q. Did you see the bookkeeper prepare the original of that or a copy of it? A. Yes, sir, I was in the office all the time, and I told him what to do.

Q. Did you see that bill delivered to the carman to be delivered to' the defendant, or a copy of it? A. The hill was sent by mail; I did not mail it; I saw it mailed;, the bookkeeper mailed it.

“ Plaintiff’s counsel.— I offer in evidence a copy of this paper.

“ By defendant’s, counsel.— I said it was mailed at the comer of Canal and Bowery^ the southwest corner, on the evening of the 2d of July, at about six o’clock in the evening. I saw this paper mailed; something else was mailed at the same time. ' I guess that four or five hundred statements went .out at that time; after the bookkeeper had written it, the correspondence was put into an envelope. . Everything was separate.

“ Q. Was this mailed at the time (presenting defendant’s Exhibit Bo. 1)? -

“ Objected to, unless it was in relation to the paper spoken of. Objection sustained.

“ Defendant excepts.”

The' defendant’s counsel on cross-examination had already identified by the witness and had marked in evidence Exhibit Ho. 1, dated July 2, 1892, as coming from the witness’ firm, and this .contained some of the goods which the plaintiffs claimed "were consigned goods, and which defendant claimed were sold. It bore the words, “ Terms net.”

The plaintiffs were endeavoring to show at the time that another paper, afterward marked plaintiffs’ Exhibit A in evidence against defendant’s objection, had been sent by mail on July 2, 1892, to the defendant. This paper was dated June 8, 1892, and contained credits with these words, “ Goods returned July 2, 1892.”

The defendant was called upon to produce the original bill said to have been sent, and answered that he did not receive such bill- and, therefore, could not produce it and that the notice to produce was defective. ';

A notice to produce all the bills, etc., was proven as having been served on the defendant and we think it was sufficient, but the plaintiffs’ attorney,. when he offered in evidence the copy of this, paper, must have conceded that his proof was lacking, since the defendant’s counsel proceeded then to cross-examine ' without objection. -■ • :

He had a right to test the memory of the witness and to show that defendant’s Exhibit 1 was the paper which the bookkeeper made out and put in the envelope and afterwards mailed.

Defendant’s Exhibit 1 was dated July 2, 1892, and plaintiffs’ Exhibit A was dated June 8, 1892, but contained the words and letters “ Or. Goods returned July 2, 1892.” It is true that either one or both of these bills might have been mailed on July 2, 1892, but the importance of the testimony to the defendant was to contradict tha witness as to which bill was mailed,, for one contained the words “ Terms net,” which defendant claimed meant a sale, and the other “ Terms on Memorandum,” which plaintiffs’ claimed meant a consignment.

Again on pages 24 and 26 the following occurred:

“ By plaintiffs’ counsel.— There appears to be here a bill dated July 2, 1892; who prepared this? A. Mr. Vogel, who was the bill clerk, and also the bookkeeper; I knew about this bill having been sent before I saw it on the last trial.

“ Q. What was meant by the (Terms net ’ upon this bill, defendant’s Exhibit Ho. 1; explain to the jury how the word (net ’ after the word (terms ’ on defendant’s Exhibit Ho. 1, came to be used?

“ Defendant’s counsel.—I object as incompetent and upon the ground that the word ‘ net ’ on the bill-head is not capable of being explained by this witness.

“ Objection overruled.

“ Defendant excepts.

“ Defendant’s counsel.— I object further upon the ground that it ■ is incompetent for the witness to give any conclusion of - any state- ■ •ment of fact.

“ Objection overruled.

“ Exception.

“A. It was done so that Mr. Luengene would not be allowed any discount of the amount of the sale of goods; for instance, take 103, hall stand,' which is marked $43; the price of that originally was $67, and 10 per cent, off for cash would bring that amount down •. too low, so that it was marked down, and that was the object of leaving the word ‘ net,’ so that the defendant would not expect any percentage off.

“ By defendant’s counsel.— Previous to this time we had put in the word ‘ net ’ on bills which were subject to litigation, we put the-word 1 net ’ on every bill of goods of the $1,461.

.“ Defendant’s counsel.— I offer this paper for identification,

“ Paper received and marked defendant’s Exhibit Ho. 2 for identification. ' -

- “ This defendant’s Exhibit Ho. 2 for identification contained the words ‘ Terms net cash,’

“Defendant’s counsel.— I'now offer defendant’s Exhibit Ho. 2 for identification in evidence. ' ,

. “ Same excluded. Defendant’s counsel excepts. •

Witness:— The word ‘ net,’ on Exhibit Ho. 2 for identification, does not mean anything different from the word (net ’ on Exhibit Ho. 1. . I claim that the goods mentioned in Exhibit Ho. 2 for identification, where the word ‘ net ’ is, were sold and were not consigned.” - __

This was the bill for -$1,461.

It is clear that this exhibit should have, been admittéd, since the witness said that both defendant’s Exhibit Ho. 1, which contained some of the goods claimed by the plaintiffs as consigned, but which had the words thereon “ Terms net,” and the plaintiffs’ Exhibit Ho. 2, which was excluded had the words “ Terms net cash,” were for goods sold and not consigned.

The defendant was,, therefore, entitled to have this exhibit with the evidence admitted for the consideration of the jury.'

We have reversed this case oti. a former trial (17 Misc. Rep. 78) and, therefore, wish to say that it is not our desire or wish to reverse, but where a clear and substantial error is committed, as in this case, it is right and just, and best for all concerned, and if on the new trial these errors can be avoided, a success may be obtained which will stand.

There are other exceptions in the case, but we think these sufficient to cause our action.

Judgment and order is for these reasons reversed and a new trial granted, with costs to the appellant to abide the event.

Fitzsimons and Conlan, JJ., concur.

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