
    David Boyd as Administer, etc., App’lt, v. Robert Boyd, Resp’t.
    
      (New York City Court, General Term,
    
    
      Filed March 9, 1894.)
    
    W itness—Impeachment.
    Until a proper foundation is laid, a witness cannot be impeached by-proofs of contradictory declarations made out of court before or after the trial.
    Appeal from a judgment in favor of the defendant, and from a motion denying a motion for a new trial.
    
      Johnston & Johnston, for app’lt; Kohn, Ruck & Lepjpman, for resp’t.
   Newburger, J.

This is an appeal from a judgment in favor of the defendant and against the plaintiff, and from an order denying a motion for a new trial. This action is brought upon a judgment recovered by the above-named intestate against the defendant in the marine court of this city on the 4th day of April, 1874. The answer in substance pleads payment and the •case was submitted to the jury on that issue. The appellant insists that the trial judge erred in the exclusion of certain testimony as follows: An examination of defendant taken in proceedings supplementary to execution in the Hnited States court for the southern district of Hew York, which examination disclosed that between the years 1879 and 1883 defendant was-insolvent. The trial justice promptly excluded this testimony. It has been repeatedly held, McCulloch v. Dobson, 133 N. Y. 124, 44 St. Rep. 89 ; Fitch v. Kennard, 46 St. Rep. 271, that a witness-cannot be impeached by proofs of declarations made out of court before or after the trial, contradictory of his testimony until a proper foundation is laid for the impeachment by interrogating the witness himself in regard to that statement. Mo such foundation was laid in this case, and attempt was made to examine the witness as to the testimony excluded. The other exceptions in case do not warrant us in disturbing the judgment.

Judgment affirmed with costs.

Van Wyck, P. J., and McCarthy, J., concur.  