Potter v. Browne

• Decision Date: 18 January 1910
• Citation: 90 N.E. 812,197 N.Y. 288
• Parties: POTTER v. BROWNE.
• Court: New York Court of Appeals Court of Appeals

197 N.Y. 288

90 N.E. 812

POTTER

v.BROWNE.

Court of Appeals of New York.

Jan. 18, 1910.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Robert H. McCarter Potter against Grant Hugh Browne. From a judgment of the Appellate Division (125 App. Div. 640,109 N. Y. Supp. 1075) affirming a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.George C. Lay, for appellant.

James W. Osborne, for respondent.

WERNER, J.

This action was brought to recover the unpaid balance of the purchase price of a number of mares and a stallion which the plaintiff sold to the defendant. The latter interposed the defense of false representations and breach of warranty. The issues framed by the pleadings were sharply contested at the trial which resulted in a verdict for the plaintiff. From the judgment entered upon the verdict, and from the order denying a motion for a new trial, the defendant appealed to the Appellate Division where there was a unanimous affirmance, from which the defendant now appeals to this court. His counsel, recognizing the limitations of the jurisdiction of this court under these circumstances, relies solely upon a series of exceptions to rulings made by the trial court in admitting incompetent evidence at the instance of the plaintiff. We think these exceptions were well taken, and that the errors of the trial court upon which they are based were so substantial in their probable influence upon the result as to require a reversal of the judgment. This can be demonstrated by the statement of a few additional facts in connection with the rule of evidence which was clearly violated in the admission of the incompetent testimony to which reference has been made.

The defendant in seeking to establish the defenses set up in his answer called as a witness one Claxon, a horse trainer, who had formerly been employed by the plaintiff, but had left him to enter the service of the defendant. This witness gave testimony which bore so directly and cogently upon the main issue of fact as to suggest to the counsel for the plaintiff the propriety, and perhaps the necessity, of showing that the witness was biased or influenced by a spirit of hostility toward the plaintiff. To that end, counsel for the plaintiff subjected the witness to a searching and exhaustive cross-examination in the course of which the witness reluctantly admitted that, instead of voluntarily leaving the employment of the plaintiff, he had been discharged. Counsel sought to extract from him the admission that he had been discharged because he had been accused by the plaintiff of misappropriating money belonging to the latter, and for cruelly beating a boy who was an apprentice or understudy also employed by the plaintiff. This effort was only partially successful, for the witness, while admitting that he had been accused of beating the boy, denied that he was charged with using a chain, and asserted that the plaintiff taxed him with having used a rope, which he denied, but admitted the beating. He denied absolutely the counsel's imputation that he had been charged by the plaintiff with misappropriating money, but admitted writing a letter to the plaintiff's wife, in which he expressed his resentment at the plaintiff's attitude towards him. He also admitted a conversation with the clerk of a New York hotel, in which that letter was referred to. This line of cross-examination culminated in an admission by the witness that he had entertained bitter feelings towards the plaintiff, although he tried to make it appear that no such feeling actuated him in testifying as a witness for the defendant.

This cross-examination was clearly permissible under the rule which permits a party against whom testimony is given to show that the witness giving it is actuated by motives of hostility. The reason of the rule necessarily implies that, when the witness unqualifiedly admits his hostility, there is neither necessity nor propriety in further pursuing the inquiry. But when he denies it absolutely, or, as in the case at bar, admits it with qualifications, the party invoking the rule may properly supplement the denial or qualified admission by giving testimony tending to show affirmative acts or declarations of hostility. This is what the plaintiff's counsel undertook to do when he recalled his client in rebuttal. Had he kept within the clearly-defined boundaries of the rule, no just criticism could be made of his effort. Instead of calling for the acts and declarations of the hostile witness, however, he propounded a series of questions which drew from the plaintiff his own declarations and mental operations, and not those of the hostile witness. The plaintiff gave his version of what he said in discharging the witness, but made no reference to anything said by the witness. This phase of the case is forcibly illustrated by a short excerpt from the record. After the plaintiff had testified to the fact that, when he discharged Claxon, he had charged the latter with misappropriating money and with beating the apprentice boy, he was asked by counsel to state the whole of the conversation. The renewed objection of defendant's counsel elicited from the court the suggestive interrogatory, ‘Do you want to limit that inquiry to the fact of the discharge and the reason of it?’ to which plaintiff's counsel replied, ...