
    Clark Surdam, App’lt, v. Wesley Ingraham and William Perkins, Resp’ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 20, 1891.)
    
    Witnebs—Impeachment.
    Where the evidence elicited on the cross-examination of a witness does not tend to contradict, discredit, vary, qualify or explain the testimony given by him on the direct, an affidavit made by him containing contradictory statements is inadmissible to impeach him.
    Appeal from judgment in favor of defendants.
    
      A. D. Wales, for app’lt; A. A. White, for resp’ts.
   Per Curiam.

The court properly excluded the evidence offered by the plaintiff as to the title and possession of the premises where the affray occurred, and the charge upon that subject was proper. Ho issue as to such title or possession was made by the pleadings or properly involved in the trial.

It was not error to exclude the affidavit made by Wesley and William Ingraham. The only theory upon which it is claimed that it was admissible is that it tended to impeach the testimony P of the witness William Ingraham. This witness, on his direct examination, testified to nothing which was at variance with the matters stated in the affidavit He had not testified that the old man Surdam struck at his brother Wesley, nor that he did not He had given no testimony upon the subject, either upon his direct or cross-examination, when he was dismissed from the witness-stand.^ He was subsequently recalled bjy the plaintiff, and, upon plaintiff’s examination, testified: “ Old man Surdam didn’t come for me nor strike me at all; he did not strike at my brother Wesley at all, that I saw; I was hit with an ax.”

If we assume that the affidavit offered was inconsistent with this evidence, still, as the evidence elicited by the plaintiff on this last examination did not tend to contradict, discredit, vary, qualify of explain the testimony given by the witness on his direct examination, it was new and independent matter drawn out by the plaintiff, and did not furnish a basis for the introduction of proof that the witness had made contradictory statements. People v. Cox, 21 Hun, 47; aff’d, 83 N. Y., 610; Sherman v. D., L. & W. R. R. Co., 106 N. Y., 542, 547; 11 N. Y. State Rep., 318; McCallan v. The Brooklyn City R. R. Co., 48 Hun, 340; 15 N. Y. State Rep., 843; People v. Holfelder, 5 id., 488.

As these are the only errors claimed, it follows that the judgment and order appealed from should be affirmed.

Judgment and order affirmed, with costs.

Hardin, P. J., Martin and Merwin, JJ., concur.  