
    DUBY GREEN, Plaintiff and Respondent, v. GUSTAVUS RICE, Defendant and Appellant.
    The application of the following rule to a case where the witness was a party to the action, considered and discussed.
    ‘ Whenever a party by the nature of his cross-examination of a witness called by the adverse party, makes the person examined his witness, and he is interrogated and examined in regard to a matter-that is merely collateral and not material to the issue, the party examining the witness cannot afterwards impeach him by proof of declarations of witnesses inconsistent with the testimony given by him.
    
      Held, by the court, that possibly this rule may be applied to the case of a party being examined as a witness, yet reasoning to the contrary. On the trial of the case at bar, the plaintiff, being on cross-examination, was questioned in regard to new matter by defendant (and which was afterwards held to be merely collateral by the court) and made answer thereto.
    Afterwards, the defendant called a witness to contradict the testimony and statements of the plaintiff, wherein defendant had made plaintiff his witness. On objection the court below held that the matter being merely collateral, plaintiff’s testimony could not be impeached by such proofs.
    Held, that the first witness being "a party to the action and the question propounded being of a character that allowed of an answer that might contain some admission or declaration of the defendant, that was pertinent and material to the issues, it was error in the court below to rule that the question should not be answered.
    Before Monell, McCunn, and Freedman, JJ.
    
      Decided April 1, 1871.
    The action was to recover first the snm of five hundred dollars, for extra work done and performed by the plaintiff for the defendants, and second, upon a special contract made by the defendants to pay the plaintiff one hundred dollars a week, during the time the work in the defendants’ distillery was suspended.
    Bice was the only defendant served. He specifically denied the alleged partnership between himself and the other defendant Loeb, and he also generally denied all the allegations in the complaint.
    On the trial before Mr. Justice Spencer, and a jury, the plaintiff, who was examined as a witness on- his own behalf, testified upon his cross-examination as follows :
    Q. From the time you left the distillery in Hovember, when they ceased work, did you ask anybody for work \
    
    A. I didn’t ask anybody for work, because I was there, and I would stand where they promised me.
    Q. Do you know the gentleman standing up there —Weinfeldt?
    A. Yes, sir.
    Q. Did you ask him for work %
    
    A. No, sir, never in my life (a person in the court room arises by request).
    Q. Do you know this man \
    
    A. Yes, sir.
    Q. Did you ever ask him for work during-that time \
    
    A. No, sir.
    Q. During all that time, you say, you did nothing at all from November until Mr. Briggs came %
    
    A. I did not.
    Weinfeldt, when examined as a witness by the defendant, was asked the following question :
    Q. During the time that distillery was not at work, do you remember whether Mr. Green called on you for any purpose ?
    The plaintiff’s counsel objected on the ground that the question was to collateral matter absolutely, and as collateral matter, the question having been asked the plaintiff, the defendants had made him their witness.
    Defendant’s counsel said, the question was also to affect the credibility of the witness.
    The court sustained the objection and the defendant excepted.
    The plaintiff had a verdict, upon which judgment was entered.
    The defendant appealed.
    A motion was made at special term for a new trial, on the ground of surprise and newly discovered evidence, and denied.
    
      The defendant appealed.
    The two appeals were heard together.
    Mr. O. L. Stewart, for the appellant.
    
      Mr. S. Hirsch, for the respondent.
   By the Court.—Monell, J.

The ground of the objection to the question put to the witness Weinfeldt, was, that it was to collateral matter, which had been elicited from the plaintiff, upon his cross-examination by the defendant, whereby the defendant had made the plaintiff his witness, and therefore, as must follow, although not so stated in the objection, could not impeach him.

It is not necessary, perhaps, to define precisely what is meant by the statute which subjects the examination of a part) as a witness in his own behalf, to the same rules of examination as any other witness. In a general sense, the examination must be conducted as in other cases, and it is possible, that whenever the adverse party, by the nature of the cross-examination, has made the party examined his witness, as he would have done in the case of any other witness, the same rule applies, and the examined party cannot be impeached as to such testimony. So that if a party is interrogated and gives evidence on a cross-examination as to a merely collateral matter, he cannot be impeached by proof of declarations inconsistent with such evidence. So far, I think, the rules regulating the examination, are alike, and the learned justice regarding the matter which had been elicited upon the cross-examination of the plaintiff as collateral, and therefore, immaterial, would not allow any impeaching testimony.

Had the witness not been a party to the action, I should have no difficulty in sustaining the decision. The . plaintiff had sued on a special contract, whereby he was to receive one hundred dollars a week, for all the time the business of the distillery was suspended ; under such a contract he was not bound to seelc other employment, and any evidence that he did not seek other employment, was wholly immaterial, unless he succeeded, when the defendants might be entitled to a credit for the amount he received.

But this was a case of a party under examination, * and the question propounded to the witness allowed of an answer containing an admission or declaration of a party to the action, and as such, it was clearly, I think, a proper question. It is always competent to prove the declarations of a party as to any thing pertinent to the issue ; and when a question put to a party calls by its answer for an admission, it is not to be affected by any of the rules relating to the impeachment of witnesses. It is impossible to say what would have been the answer to the question put to the witness in this case, but it is easy to see, that the answer to that and another question which might have followed it, if the first had been allowed to be answered, might have contained a material and important declaration of the plaintiff.

But without speculating upon what might have been the answer, it is enough that the question was proper, as proving or tending to prove a declaration of the party, the materiality of which could only be ascertained by the witness’ answer, and upon the exception to the decision of the learned justice, we must hold it to have been erroneously excluded.

For this reason the judgment must be reversed, and a new trial granted.

The motion for a new trial on the ground of surprise and newly discovered evidence, was properly disposed of at the special term. The evidence claimed to be newly discovered was cumulative, and the grounds of the alleged surprise not sufficient to authorize us to set aside the verdict.

That order should be affirmed, with costs.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.

Freedman, J. (dissenting).

The question put to the witness Weinfeldt, was not only irrelevant to the issues framed by the pleadings, but so broad, that its exclusion did not, in my opinion, constitute error.

If, as my learned brethren have conceded, the materiality of the evidence sought to be elicited could only be ascertained by the answer of the witness, it was the duty of defendant’s counsel to apprise the court of what he intended to prove, and the precise ground upon which he claimed the evidence to be material, which he failed to do. An exception to the exclusion of a single question, so broad and general that its materiality could not be readily seen, and which was not followed up, should never be held error sufficient, per se, to work the reversal of a judgment, on appeal, unless it most clearly appears that the court below understood the ground upon which the question might have been admitted.

The judgment should be affirmed, with costs.  