Hine v. Cushing , 60 N.Y. Sup. Ct. 519 ( 1889 )

Barrett, J.

I concur in the opinion of Mr. Justice Daniels upon the general merits of this controversy. But I am unable to agree with him that the judgment must nevertheless be reversed because of errors in the admission and exclusion of testimony. .

First. With regard to the witness Miller. The defendant was not surprised by the testimony of this witness, nor does he seem to have been a hostile witness. The excluded questions were not necessitated by anything which transpired upon the direct examination. Upon that examination there was neither inconsistency nor want of recollection. The excluded questions were put upon the redirect, after the witness, upon cross-examination, had admitted making an affidavit somewhat modifying his direct testimony. The rule laid down in Bullard v. Pearsall, 53 N. Y. 230, (which is evidently the case referred to by Justice Daniels,) does not apply to such a situation. The defendant had a right, upon the redirect, to inquire into the circumstances attending the making of the affidavit. He could also ask the witness whether he still adhered unqualifiedly to his direct testimony. If he did, the defendant could not add to that adherence, or corroborate the witness, by asking him whether he had not-previously testified (even more strongly) to the same effect. If, however, upon being confronted with the affidavit, the witness receded from the direct- testimony, the defendant could probably refresh his recollection, and bring him back to his original statement, by recalling the previous testimony. But where the witness was not asked whether he reaffirmed or receded from his direct testimony, the latter simply stood, subject to the legitimate effect of the cross-examination. The defendant could not, under such circumstances, and under the guise of a cross-examination of his own witness upon the affidavit, make direct testimony of the previous declarations. It was not a complete lapse or change of memory with which the party here calling the witness had to contend, but merely the weakening of his direct testimony by cross-examination. That did not justify an iriquiry into the witness’ testimony in other cases. A party calling a witness, who is surprised by testimony contrary to his expectations, is permitted to interrogate the witness as to previous declarations inconsistent with the testimony, “for the purpose of probing his recollection, recalling to his mind the statements he has previously made, and drawing out an explanation of his apparent inconsistency.” Rapallo, J., in Bullard v. Pearsall, supra. Here, however, there was no inconsistency between the testimony given and the previous declarations. The direct testimony was not perhaps quite so strong as the previous testimony, but it was substantially the same. At all events, the previous testimony was not admissible, nor could the witness be interrogated with regard to it, merely for the purpose of giving color and strength to the present direct testimony, there being no inconsistency between the latter and the former. The inconsistency, if any, was in the affidavit to which the witness’ attention was called upon cross-examination. But the rule does not extend to such surprises of cross-examination, nor to declarations inconsistent with affidavits used to weaken perfectly consistent direct testimony. My conclusion is that the defendant was deprived of no legal right by the exclusion of these declarations.

Second. As to the admission of the entire affidavit. This was unobjectionable, as the referee expressly limited its use to its proper function, namely, the showing of statements inconsistent with the witness’ present testimony. The referee then added: “The statements in the affidavit are not admissible as evidence for any other purpose.” And when the defendant’s counsel repeated his objection in another form the referee again said: “I overrule the request, on the ground that the whole of the affidavit must be admitted in evidence, but holding at the same time that the affidavit constitutes no proof of the facts in the portion of the affidavit which has been read ”

Third. As to the admission, upon Hatfield’s cross-examination, of the building laws applicable to the city of Hew York. This was immaterial, and could not possibly have prejudiced the defendant. It was also superfluous, as the laws of the state can be referred to without being put in evidence.

Fourth. As to the hypothetical questions put to the witness Robertson. Justice Daniels concedes that this evidence was both useless and harmless. For that very reason I cannot assent to the granting of a new trial merely because the questions put to this witness were intricate and prolix, nor because of the manner in which this useless and harmless testimony was taken. In my judgment, substantial justice was done in this case, and whatever errors may have been committed, in the course of a long and earnestly contested trial, were trivial and unimportant. They were not, at all events, sufficiently grave to affect the result or to warrant the disturbance of the judgment. The judgment should be affirmed, with costs.