166 N.Y. 433, Nowack v. Metropolitan St. Ry. Co.

Citation166 N.Y. 433
Party NameJOSEPH NOWACK, an Infant, by BARNETT NOWACK, his Guardian ad Litem, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY, Respondent.
Case DateApril 16, 1901
CourtNew York Court of Appeals

Page 433

166 N.Y. 433

JOSEPH NOWACK, an Infant, by BARNETT NOWACK, his Guardian ad Litem, Appellant,

v.

METROPOLITAN STREET RAILWAY COMPANY, Respondent.

New York Court of Appeal

April 16, 1901

Argued March 6, 1901.

Page 434

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Page 436

COUNSEL

Harold Nathan and Frederic E. Perham for appellant. The court erred in excluding evidence of attempts on the part of defendant to suborn plaintiff's witness. (Moriarty v. L. etc., Ry. Co., L. R. [ 5 Q. B.] 314; Cruikshank v. Gordon, 118 N.Y. 178; 48 Hun, 308; Gulerette v. McKinley, 27 Hun, 320; Adams v. People, 9 Hun, 89; Donohue v. People, 56 N.Y. 208; Mather v. Parsons, 32 Hun, 338; C. C. Ry. Co. v. McMahon, 103 Ill. 485; Hastings v. Stetson, 130 Mass. 76; State v. Nocton, 121 Mo. 537; Heslop v. Heslop, 82 Penn. St. 537.) The act of the defendant's investigator, in attempting to suborn a witness, being an act done in the course of his employment, was an act of the defendant company itself, and was equivalent to an admission, not by the agent, but by the company. (F. A. Bank v. F. S. S. & G. S. F. R. R. Co., 137 N.Y. 231; Jarvis v. M. B. Co., 148 N.Y. 652; Clark v. Koehler, 46 Hun, 536; Story on Agency [9th ed.], § 452; 4 Thompson on Corp. § 4912; T. B. Co. v. Betsworth, 30 Conn. 380.)

Charles F. Brown and Henry A. Robinson for respondent. Evidence of an offer by Kaufmann is not binding upon the defendant. (Moriarty v. L., etc., Ry. Co. [ 5 Q. B.] 314; Marvin v. Wilber, 52 N.Y. 270; Morawetz on Corp. [ 2d ed.] 509, § 540a; Cook on Corp. § § 716, 717, 718, 719; Titus v. Railway, 37 N. J. L. 98; Matter of U. Nat. Brewing Co., 154 N.Y. 268; F. Nat. Bank v. O. Nat. Bank, 60 N.Y. 278; Carver Co. v. Manufacturers' Company, 72 Mass. 214; Trip v. M. P. Co., 137 Mass. 499; Keel v. Brillinger, 84 Penn. St. 279; K. N. Mfg. Co. v. McAllister, 36 Mich. 327.) The rulings upon evidence with reference to conversations with Kaufmann were correct. (Kay v. Met. St. Ry. Co., 163 N.Y. 447.)

Page 437

VANN, J.

Evidence tending to show that a party to an action tried to bribe a witness to give false testimony in his favor, although collateral to the issues, is competent as an admission by acts and conduct that his case is weak and his evidence dishonest. It is somewhat like an attempt by a prisoner to escape before trial, or to prove a false alibi, or by a merchant to make way with his books of account, except that it goes farther than some of these instances, for in addition to reflecting on the case, it reflects upon the evidence on that side of the controversy.' Where it appears that on one side there has been forgery or fraud in some material parts of the evidence, and they are discovered to be the contrivance of a party to the proceeding, it affords a presumption against the whole of the evidence on that side of the question, and has the effect of gaining a more ready admission to the evidence of the other party.' (1 Phillips on Ev. [ C. & H. Notes] 627.) It is not conclusive, even when believed by the jury, because a party may think he has a bad case when in fact he has a good one, but it tends to discredit his witnesses and to cast doubt upon his position. It is for the consideration of the jury, after ample opportunity for explanation and denial, under proper instructions to prevent them from giving undue attention to the collateral matter to the detriment of the main issue.

The leading authority in support of such evidence is an English case, decided after careful argument by counsel and upon full discussion by the judges. (Moriarty v. London, C. & D. Ry. Co., L. R. [ 5 Q. B.] 314.) It is also sustained by the cases in this state relating to the subject, some with and some without discussion. (Cruikshank v. Gordon, 118 N.Y. 178, 187; Gray v. Met. St. Ry. Co., 165 N.Y. 457, 459; Mather v. Parsons, 32 Hun, 338; Gulerette v. McKinley, 27 Hun, 320; Adams v. People, 9 Hun, 89.) It is received even in criminal actions. (People v. Rathbun, 21 Wend. 509; Gardiner v. People, 6 Parker Cr. Rep. 155, 205; Donohue v. People, 56 N.Y. 208.) The same rule prevails in other states, without exception, so far as we have been able to discover. (Egan v. Bowker, 5 Allen, 449; State v. Nocton, 121 Mo. 537, 551;

Page 438

Heslop v. Heslop, 82 Pa. St. 537, 539; Snell v. Bray, 56 Wis. 156, 162; Lyons v. Lawrence, 12 Ill.App. 531; People v. Marion, 29 Mich. 31; Commonwealth v. Webster, 5 Cush. 295, 316.) The elementary writers sanction it, some notwithstanding they concede it to be collateral and others upon the ground that as it relates to good faith or the intent of a party, it is a material fact and has a direct bearing on the issue. (1 Taylor on Ev. [ 9th ed.] 242; 1 Greenleaf's Ev. [ 15th ed.] § 196; Wheaton on Ev. § 1265; 1 Starkie's Ev. 437; 11 Amer. & Eng. Ency. of Law [2nd ed.] 503.)

It is claimed, however, that such evidence is not admissible against a corporation without proof of some corporate act expressly authorizing an agent to tamper with witnesses. This is equivalent to claiming that such evidence cannot be received against corporations at all, because in the nature of things proof of express authority would be impossible. A corporation can act only through agents, and where a branch of its business, whether broad or narrow, is intrusted to an agent, without any restriction, whatever he does which directly relates to that part of the corporate business and tends to promote it, is binding upon the corporation. Under such circumstances he has control of the method of action, and that which he does, whether morally right or wrong, within the general scope of the matter intrusted to him, in legal effect is done by the corporation itself. Having authority to accomplish a certain result, with no limitation as to the means to be employed, his acts, so far as they directly contribute to that result, even if unlawful, are corporate acts. They are done for the corporation by an agent clothed with general authority to effect a certain purpose, which they aid in attaining. Any admission made by him through acts done to carry on his branch of the business, and which reasonably tend to advance it, is regarded in law as made by the corporate body which authorized him to act for it with reference to the subject of his employment.

Kaufmann was employed to look up and 'see to' witnesses for the defendant, so as to enable it to defeat the plaintiff's

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claim, among others. He was to find witnesses, if possible, who would swear to such a state of facts as would prevent a recovery against the defendant. The method of doing this was left to his judgment and discretion. If he adopted a method not contemplated by the defendant, still it is responsible for what he did in the line of his employment to...

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49 practice notes
  • 174 N.Y. 36, Hoag v. Wright
    • United States
    • New York New York Court of Appeals
    • February 24, 1903
    ...to bribe him, the fabrication, destruction or concealment of evidence and the like, may be shown. (Nowack v. Metropolitan St. Ry. Co., 166 N.Y. 433; Matter of Snelling, 136 N.Y. 515; 11 Am. & Eng. Encyc. [2d ed.] 503.) There has been a change by legislation since the Van Wyck case was d......
  • 30 N.Y.2d 289, Brown v. Poritzky
    • United States
    • New York New York Court of Appeals
    • May 3, 1972
    ...of the employment. * (Gleason v. Seaboard Air Line Ry., 278 U.S. 349, 49 S.Ct. 161, 73 L.Ed. 415; Nowack v. Metropolitan St. Ry. Co., 166 N.Y. 433, 60 N.E. 32; Willis v. Metropolitan St. Ry. Co., 76 A.D. 340, 78 N.Y.S. 478; Restatement, 2d, Agency, § 219; 2 N.Y.Jur., Agency, § 255; for hist......
  • 178 N.Y. 274, People v. Mills
    • United States
    • New York New York Court of Appeals
    • April 26, 1904
    ...yet the act of the agent bound the principal and his unlawful act would be imputed to the corporation. (Nowack v. Met. St. Ry. Co., 166 N.Y. 433.) In view of this decision it is difficult to see upon what ground or for what reason it is asserted in this case that the district attorney's off......
  • 294 N.Y. 632, Canfield v. Moreschi
    • United States
    • New York New York Court of Appeals
    • October 25, 1945
    ...v. Postal Telegraph-Cable Co., 118 A.D. 685, 192 N.Y. 580; Morrisson v. Chapman, 155 A.D. 509; Nowack v. Metropolitan St. Ry. Co., 166 N.Y. 433; Stone v. Eisen Co., 219 N.Y. 205; Boyce v. Greely Square Hotel Co., 228 N.Y. 106; de Wolf v. Ford, 193 N.Y. 397; Aaron v. Ward, 203 N.Y. 351.) IV.......
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49 cases
  • 174 N.Y. 36, Hoag v. Wright
    • United States
    • New York New York Court of Appeals
    • February 24, 1903
    ...to bribe him, the fabrication, destruction or concealment of evidence and the like, may be shown. (Nowack v. Metropolitan St. Ry. Co., 166 N.Y. 433; Matter of Snelling, 136 N.Y. 515; 11 Am. & Eng. Encyc. [2d ed.] 503.) There has been a change by legislation since the Van Wyck case was d......
  • 30 N.Y.2d 289, Brown v. Poritzky
    • United States
    • New York New York Court of Appeals
    • May 3, 1972
    ...of the employment. * (Gleason v. Seaboard Air Line Ry., 278 U.S. 349, 49 S.Ct. 161, 73 L.Ed. 415; Nowack v. Metropolitan St. Ry. Co., 166 N.Y. 433, 60 N.E. 32; Willis v. Metropolitan St. Ry. Co., 76 A.D. 340, 78 N.Y.S. 478; Restatement, 2d, Agency, § 219; 2 N.Y.Jur., Agency, § 255; for hist......
  • 178 N.Y. 274, People v. Mills
    • United States
    • New York New York Court of Appeals
    • April 26, 1904
    ...yet the act of the agent bound the principal and his unlawful act would be imputed to the corporation. (Nowack v. Met. St. Ry. Co., 166 N.Y. 433.) In view of this decision it is difficult to see upon what ground or for what reason it is asserted in this case that the district attorney's off......
  • 294 N.Y. 632, Canfield v. Moreschi
    • United States
    • New York New York Court of Appeals
    • October 25, 1945
    ...v. Postal Telegraph-Cable Co., 118 A.D. 685, 192 N.Y. 580; Morrisson v. Chapman, 155 A.D. 509; Nowack v. Metropolitan St. Ry. Co., 166 N.Y. 433; Stone v. Eisen Co., 219 N.Y. 205; Boyce v. Greely Square Hotel Co., 228 N.Y. 106; de Wolf v. Ford, 193 N.Y. 397; Aaron v. Ward, 203 N.Y. 351.) IV.......
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