Salzman v. Mandel

Bischoff, J.

Substantial error was committed in the exclusion of certain evidence offered for the defendant, and the motion for a new trial should have been granted. The action was for an assault, suffered by the plaintiff at the hands of the defendant, a banker, at his place of business; and the issue was whether the assault had ever taken place. The testimony of the plaintiff was corroborated by an apparently disinterested witness, Grief, but, upon cross-examination, the defendant’s counsel was not permitted to bring out the reasons why the witness, a former customer, had ceased dealing with the defendant, and whether he had not once been ordered out of the defendant’s place of business.

The defendant was entitled to show the probable bias of the witness, through hostility to the party against whom he testified (People v. Milks, 70 App. Div. 438; Schultz v. R. R. Co., 89 N. Y. 242), and the questions excluded had a direct and material hearing upon the witness’ credibility.

The error in the ruling Was not rendered harmless by the fact that the defendant afterward, himself, testified that he had no trouble personally with Grief, since this did not touch the question of Grief’s own state of mind.

It appears, also, that the court did not give sufficient latitude to the defendant upon the plaintiff’s cross-examination, in the attempted inquiry whether her alleged injuries were not caused by a fire which occurred at her home.

The judgment and order, therefore, must be reversed and the motion for a new trial granted, with costs to the appellant to abide the event.

Scott and Tbuax, JJ., concur.

Order reversed and motion for new trial granted, with costs to appellant to abide event.