
    Margaret M. Wendt, Resp’t, v. Patrick Craig, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 15, 1895.)
    
    Witness—Credibility.
    Where it cannot be said, as matter of law, that there is no contradiction between two affidavits, made by a person who is a witness in the action, their effect upon the credibility of the witness should be left to the jury, without the statement of the court that there is no contradiction in them.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered. upon a verdict, and also affirmed an order denying defendant’s motion for a new trial in an action for slander.
    
      J. Newton Fiero, for app’lt; James M. Seaman, for resp’t.
    
      
       Reversing 45 St. Rep. 23.
    
   Peckham, J.

We are of the opinion 'that the learned judge erred in his charge to the jury, that the second affidavit of Eliza Elynn does not contradict the first. It was so worded that the jury might well have come to the conclusion that it did contradict and was so intended. In that way her credibility was impugned and the effect was for the jury.

In the second affidavit she says she made the first through fear, and that she did not want to make it as she had nothing against Mr. Oraig. Also, that she wanted to withdraw whatever charge she made.

The expression of her desire to withdraw the charge might be interpreted as a desire to withdraw because she did not wish to prosecute or because it was not true. And again, when she said that she had nothing against Mr. Oraig, it might naturally be construed as meaning she had no ground of complaint against him.

It cannot be said, as matter of law, that there is no contradiction between the two affidavits, and their effect upon the credibility of the witness should have been left to the jury without the statement of the court that there was no contradiction in them.

The verdict was quite a large one and the case closely contested and an error of this kind may have been quite prejudicial to the defendant’s case.

The judgment must be reversed and a new trial granted, with costs to abide the event.

All concur. Judgment reversed.  