Ankersmit v. Tuch
| Decision Date | 26 March 1889 |
| Citation | 114 N.Y. 51,20 N.E. 819 |
| Parties | ANKERSMIT et al. v. TUCH. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from supreme court, general term, First department.
Action by Fritz A. Ankersmit and another against Simon Tuch, as assignee. Judgment was given for the defendant, and plaintiffs appeal.
WITNESS-EXAMINATION-IMPEACHMENT.
In an action to recover the possession of certain goods alleged to have been purchased by the defendant's assignor by means of false and fraudulent representations as to his solvency, where the assignor, on being called as a witness by the defendant, had testified, on cross-examination, that he had not made certain statements to one B. with regard to his solvency, it was competent for the plaintiff to show by B. after the defendant had rested that the assignor had made such such statements to him for the purpose of impeaching the credibility of the assignor, although the evidence of B. would have been competent on the direct examination by plaintiff; and the fact that it was not then introduced did not make it discretionary with the trial court to subsequently exclude it.
Frederick P. Forster, for appellants.
Alfred P. Seaman, and E. E. Wise, for respondent.
This action was brought to recover the possession of eight bales of Sumatra tobacco, purchased by the defendant's assignor, as is alleged, by means of false and fraudulent representations as to his solvency, and with the intent not to pay therefor. Upon the trial the plaintiffs gave evidence tending to show that, before making the sale of the goods in question, the defendant's assignor represented and stated that he was solvent, and worth $20,000; that his wife had $10,000, which was in the stock at the risk of the business. After the plaintiffs had rested, the defendant's assignor was sworn as a witness for the defendant, and denied that he had made any such representations. Upon the cross-examination he was asked if he had not purchased goods at about that time of various individuals, among whom were Schroeder & Bon, and he testified that he had, but that at the time of such purchase, in August or September, 1885, Bon did not make any inquiry of him as to his financial condition, and that he did not say to Bon that he was solvent and worth $20,000, and did not state to him that he had $10,000 in his business from his wife, which was at the risk of the business. After he had rested, the plaintiffs called Bon as a witness, who testified that he sold the goods to the defendant's aggignor in August or September, 1885, and that at that time he made a statement as to his condition. The witness was then asked: ‘Did he state to you that he was solvent; that he was worth $12,000; and that the $10,000 which he got from his wife was at the risk of the business?’ This was objected to as immaterial, incompetent, and not in rebuttal. The evidence was excluded, and an exception taken by the plaintiffs.
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