
    Pendleton v. Empire Stone Dressing Company.
    Before a witness can be discredited by proof of his contradictory statements, the occasion of the supposed conversation must be pointed out to him with reasonable certainty, as by indicating the place, the purpose of the interview or other circumstances likely to recall it to the witness. It is not enough to give the name of the person to whom the statement was made.
    The plaintiff rendered services for a corporation under a formal appointment as treasurer, but with no arrangement for its compensating him, and there was evidence tending to show that he expected compensation only from the incidental advantages of his connection as a partner with another officer of the company: Held, a proper question for the jury, whether the services were intended to be gratuitous as it respected the company.
    A charge submitting the question without distinguishing between absolute gratuitousness and gratuitousness in respect to the company, could not mislead, and was not erroneous.
    Appeal from a judgment of the Superior Court of the city of New York. The action was brought to recover compensation for the services of Horace Andrews, as assistant treasurer Of the defendant, from October, 1850, to January, 1853; Andrews having sold and assigned the claim to such compensation to the plaintiff. Andrews was the principal witness for the plaintiff, and his testimony tended to establish the fact that he had performed valuable services, in the character mentioned, for the defendant, within the period specified, with the knowledge of the trustees; and it appeared, from the minutes of the board, that he was formally appointed assistant treasurer on the 2Sd of June, 1852, and was, by the terms of the resolution, to hold the situation until the 17th day of October following. It also appeared that Charles T. Shelton was the president and treasurer of the company, during the period of the alleged service of Andrews, and that the only accounts kept by him, respecting moneys of the defendant which passed through his hands, were kept in his private books, by his charging and crediting the company, as is to be inferred from the testimony, in the same manner as other persons with whom he had dealings. Andrews admitted that the entries made by him, in the business for which compensation was claimed, were in these books, though he testified that he was exclusively engaged in raising money for the defendant by borrowing and obtaining discounts from banks. It also appeared that Shelton, Andrews, and one Flagg, were partners in business as attorneys at law, in the city of Mew York, which connection terminated, as Andrews testified, in the spring of 1852. In forming the capital of the defendant’s company, it acquired an interest in certain patent rights for dressing stone, from another company, called the Morth American Stone Dressing Company, at the price of $100,000, which amount was represented by shares of stock issued by the defendant’s company to the parties interested in the Morth American Company, and that Andrews, as one of these parties, received such shares to the amount of $20,000. Andrews admitted that there was no agreement between him and the defendant respecting salary, or as to terms of compensation, and that he never presented any claim for services until Movembej, 1854.
    ■ On the part of the defendant, the deposition of Shelton, taken under a commission issued to Mew Jersey, was given in evidence. He testified that he was president and treasurer of the defendant’s company, from the time of the commencement of Andrews’ alleged services until Movember, 1852, and that, as far as he knew, said Andrews never was employed by the defendant in any capacity whatever; that, during the whole of that time, he and Andrews were partners in business, together with Flagg, as attorneys at law, and that their business embraced also the sale- of inventions for cutting and polishing stone, and the formation of companies for those purposes; and that, by the terms of the partnership agreement, Andrews was to keep the books of the law firm and the witness’ individual books, and those of any copartnership in which he might be interested. The witness stated that he was interested in the defendant’s company, to the amount of one-fourth of its capital, and that the services of Andrews, for which the plaintiff claimed to recover, were rendered in pursuance of the said copartnership agreement, and to sustain the patent interests in which the witness and Andrews were interested ; and that he had been paid in full by settlement between all the members of said firm; that said Andrews never made any claim to be paid for his services while the witness was an officer of the company, and that he, the witness, never heard of such claim until the fall of 1854:. By one of the cross-interrogatories, the witness was required to testify whether he had stated to said Horace Andrews and Charles S. Andrews, or either of them, in substance, that the services rendered by said Horace, as assistant treasurer for the defendant, were worth $5,000 a year. The witness’ answer was, that he had no recollection of ever having so stated. The plaintiff then offered to prove, by Charles S. Andrews, that the plaintiff called on Shelton, at the Brevoort House, and asked him if the said account for services was a good and valid account against the defendant, and that Shelton said it was a valid claim, and that the services of Andrews for the said company hod been arduous and valuable, and that he ought to have been paid by the company $5,000 a year. The plaintiff’s counsel objected, and the judge sustained the objection and rejected the evidence so offered, and the plaintiff’s counsel excepted. The plaintiff’s counsel further offered to prove, by Horace Andrews, that Shelton said to him, in the presence of C. S. Andrews and the plaintiff, that the services of said Horace Andrews, as assistant treasurer of said company, were valuable, and that he had a good claim against the company for said services, and that the company ought to pay him $5,000 a year therefor. This evidence was excluded, on the defendant’s objection, and the plaintiff excepted.
    The judge, among other things, charged the jury that, as to the services rendered by said Andrews for said company, after his appointment by the board of trustees to the office of assistant treasurer,. they had a right to inquire whether such services were rendered in the expectation of receiving compensation therefor, or whether they were gratuitous, and intended so to be by said Andrews, at the time they were rendered, and so understood by both parties; and if they believed said services were to be rendered gratuitously, their verdict should be for the defendant, as to those services. The plaintiff’s counsel excepted.
    The verdict was for the defendant; and the plaintiff appealed here, after an affirmance of the judgment at the general term. The case was submitted on printed points.
    
      B. C. Thayer, for the appellant.
    
      Sandford & Brace, for the respondent.
   Denio, J.

I think the admissions of the witness Shelton, which the plaintiff offered in evidence, were relevant to the issue. He had sworn, in effect, that the services of Andrews were not rendered in the employment of the defendants’ company, but in fulfillment of an agreement which the witness had made with him by their partnership articles, and the offer was to show that he had stated that such services constituted a valid demand against the company, which it ought to pay. This could not be true, unless Andrews was in the service of the company when he performed the duties for which payment was claimed. The admissions, therefore, if made, were not matters of opinion, but were, in substance, the stating of material facts directly hostile to what he had sworn. The plaintiff was, therefore, entitled to give these admissions in evidence to affect his credit, if his attention had been sufficiently called to the matter when he was under examination before the commissioner. He was inquired of whether he had not made statements, either to Horace or to Charles S. Andrews, to the effect of those offered to be proved, and he said he had no recollection of having done so. The first offer of proof was of a statement made by Shelton to the plaintiff in this suit. The attention of Shelton had not been directed to that conversation in any manner. But the other offer was to show a statement made to Horace Andrews in the presence of the plaintiff and of Charles S. Andrews. Ho time or place were indicated by the question, and none had been pointed out to Shelton, when he was asked as to statements made by him. The question then is, whether it is sufficient to inquire of a witness whether he has not made specific statements, contradictory to the testimony he has given, to an individual named, without mentioning time, place or other circumstance, in order to lay the foundation for giving in evidence such contradictory statements. The reason for requiring that a witness, whose credit it is intended to attack by the proof of contradictory statements, should be first examined respecting them, is according to the unanimous opinion of the judges in The Queen's case, that he may be enabled to give such reason, explanation or exculpation as the circumstances of the transaction may happen to furnish. (2 Brod. & Bing., 313.) It did not fall within the purpose of the judges to declare how specific the cross-examination for such a purpose ought to be, the question being whether he should be required to be examined as to the fact whether he had ever made such declarations. In Angus v. Smith (1 Mood. & Malk., 473), the witness attempted to be contradicted, denied, on cross-examination, that he had ever said what was imputed to him, but no name of any person had been suggested to him as the party to whom he had made the supposed statement. It was then proposed to prove a statement made to a particular person; but the court held that a sufficient foundation had not been laid. The Chief Justice said: “I understand the rule to be that, before you can contradict a witness by showing that he has, at some other time, ¿aid something inconsistent with the present evidence, you must ask him as to the time, place and person involved in the supposed contradiction.” In a note by the Reporter, it is-stated that the general practice, since The Queen’s case, has been in conformity with the rule as above stated by Chief Justice Tindal. That rule was referred to as the one which should govern in such cases in the late Supreme Court, in Davis v. Kimball (19 Wend, 437). The general rule, that the attention of the witness to be impeached must be in some sufficient manner called to. his alleged conflicting declarations, has been frequently stated and affirmed in this court, though it has not become necessary to state the extent to which the cross-examination must be carried. (Patchin v. The Astor Mut. Ins. Co., 3 Kern., 268; Stacy v. Graham, 4 id, 492.) The rule, as laid down by Chief Justice Tindal, is generally referred to as the true one by writers on the law of evidence. {Cow. & Hill's Notes, 774; 1 Greenl., § 462.) I am not aware that any case has been presented to the courts where the name of the person to whom the declaration supposed to have been made, and nothing more, has been stated in the cross-examination of the principal witness, though the dicta of judges and of writers, as we have seen, tends strongly to the conclusion that this alone would not be considered sufficient. I conceive, therefore, that we are at liberty to lay down the rule which ought to be observed in such cases, and I am of the opinion that the occasion of the supposed conversation ought to be pointed out with reasonable certainty on the cross-examination of the witness whose credit is to be attacked by the proof of contradictory statements. It cannot, of course, be necessary that the precise date should be indicated, as that must often be difficult to ascertain, and if ascertained, would not be likely, of itself, to recall the circumstance to the witness; but the place could easily be indicated and the occurrence identified by a statement of the purpose of the interview or other circumstances, which would recall it to the mind of the witness, if the conversation inquired of actually took place. It is obvious that the cross-examination, in this instance, did not come within the reason of the rule as thus defined, and that the judge was justified in excluding the declaration offered.

Ho error of substance was committed in the manner in which the judge submitted the case to the jury. Andrews had, no doubt, performed certain services in the business of the defendants, but there was considerable evidence to show that it was under an arrangement with Shelton by the terms of which the compensation of Andrews was -to be had in the advantages he was to realize from his connection with that person. There was, it is true, a formal appointment to the place of assistant treasurer, covering a portion of the period in respect to which compensation was claimed, and this was a fact very favorable to the plaintiff’s position. It was, however, quite consistent with Shelton’s testimony that the appointment might have been made to satisfy some purposes of form. The absence of any agreement for compensation, and the fact that none was claimed until some time after the service of Andrews had ceased, confirm, to some extent, the evidence of Shelton; and we think upon the whole that the question was one of fact, suitable to be submitted to the jury. In terms, the question submitted was, whether Andrews rendered these services gratuitously. This is not precisely the language in which it should have been stated. The system of the defence was, that Andrews was employed and compensated by Shelton, and that the company owed him nothing. But the jury could not have misunderstood the point on which the case turned. The services of Andrews, according to Shelton’s testimony, were to be gratuitous as respected the defendants, and this was the only question material to be considered. The judgment should be affirmed.

Gray, J., delivered an opinion to the same effect; all the judges concurring,

Judgment affirmed.  