
    Alfred C. Gibson, Appellant, v. Edward Johnson, Respondent.
    (Supreme Court, Appellate Term,
    July, 1897.)
    Evidence — Rebuttal.
    Testimony offered by the plaintiff, after the defendant has rested his case, consisting, in effect, of repetitions of the plaintiff’s evidence in chief or of additional evidence properly belonging to the plaintiff’s case and composed in part of admissions made by the defendant, is inadmissible, and is in no sense evidence offered in rebuttal.
    Appeal from judgment rendered by the justice of the Second Judicial District Court upon the verdict of a jury in favor of the defendant.
    Cromwell G. Macy, for appellant.
    Herbert J. Hindes, for respondent.
   Bischoff, J.

The appellant seeks a reversal of this judgment solely upon the ground that testimony offered by him after the defendant’s case was rested was erroneously excluded as not being in rebuttal, the contention proceeding upon the theory that the evidence would have served to contradict the defendant upon certain material matters as to which he testified.

To us it appears that the questions excluded called only for the plaintiff’s repetition of his testimony in chief, as controverted by the defendant, or for additional evidence which was properly a part of the plaintiff’s case and so in neither aspect evidence in rebuttal, to the admission of which class of evidence alone the plaintiff was entitled after the defendant had rested, since the case was not. to be reopened as a matter of right, but only through the exercise of the court’s "discretion.

The action was for the conversion of certain moneys alleged to have been obtained by the defendant in the course of his employment by the plaintiff, as agent for the sale of goods, and not paid over, the issue being whether or not the moneys had been received by the defendant from the purchasers.

In the course of his direct examination the plaintiff testified that he had repeatedly called the defendant’s attention to the accounts of these purchasers, apparently in arrears, and had, in fact, spoken to him upon the subject whenever they met.

The defendant, called as a witness in his own behalf, contradicted the plaintiff in this, testifying that the latter had not asked him about these accounts -at all, but no affirmative matter was brought out upon his examination.

was asked, in purported re-The plaintiff was then recalled and buttal, what was said in the Course of his conversations with defendant concerning these accounts, whether he had ásked defendant to account for the moneys, whether they had conversations at certain .stated times relative to these mators and whether -defendant' had made certain admissions in the course of these conversations.

These questions were all properly excluded, since, while they may have been suggested by the defendant’s denial that any conversations, such as testified to by the plaintiff, had taken place, they were not necessitated by that denial and.simply went to 'the plaintiff’s case in chief, either as tending to supply omitted details or in reiteration of testimony given e s part of that case and contradicted by the defendant in due course of the trial, but they did not call for evidence in rebuttal.

The judgment is not otherwise assailed and should, therefore, be affirmed, with costs. " i

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  