
    Henry P. Sisson, Resp’t, v. Geo. W. N. Yost, Impl’d, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    Sebvices—Evidence.
    In an action for services the issue was whether they had been rendered to a firm, as plaintiff claimed, or to a corporation, as defendant claimed. A wi'ness who had been successively secretary, treasurer and attorney for the corporation was called and his attention called to an entry of a resolution in the record of the corporation, viz.: “motion carried suspending the employment if any exists of * * * H. P Sisson (the plaintiff) with full power granted to vice-president and secretary to employ them temporarily as the interests of the company may seem to require. ” He testified that Sisson had made a claim and this was intended to suspend any further claim. The plaintiff asked " Do you recall putting in the words ‘ if any exists.’ ” The witness said he did not recall the circumstances which led him to put in those words. The plaintiff asked “ Is it not a fact that you were under the impression that the company was not liable at all?” Under defendant’s objection the witness said “I was of that impression.” Seld, error; that this evidence of the impression of the witness was clearly prejudicial to defendant.
    Appeal from a judgment entered upon the verdict of a'jury.
    
      C. G. Patterson, for app’lt; Rudd & Hunt, for resp’t.
   Brady, J.

This action was brought against the appellant and one Blanchard, composing the firm of Yost & Blanchard, to recover the balance due for services rendered to them by the plaintiff as a draughtsman, between October 6, 1883, and December 1, 1885, at an agreed salary of $57.70 per week. The summons was served upon Yost only. He admitted in his answer the existence of the copartnership during the period when these services were alleged to have been rendered, but set up as a defense that they were rendered by the plaintiff to a corporation named the Blanchard Electric Light & Power Company.

Upon the trial it was practically conceded that the services had been rendered and at the salary agreed upon; the issue, however, was whether they were rendered for the copartnership or for the company named.

During the trial the defendant called as a witness Philip Carpenter, a member of the bar and a lawyer by profession. He had been a trustee and secretary and treasurer of the company named for about two years. He preceded the plaintiff as secretary and the defendant Yost as treasurer, and became the attorney for the company. -He assumed to act as such at the same time that he became secretary and treasurer. That was before December, 1886, but was continued until April, 1888. The attention of the witness was called to a page of a book called the Record of the Blanchard Electric Light & Power Company. The resolution contained on this page, which had been passed by the company, was in his handwriting, and was offered in evidence. It is as follows:

“Motion carried suspending the employment, if'any exists, of R. D. Warner, Greo. W. Wanson and H. P. Sisson, with full power granted to vice-president and secretary to employ them temporarily, as the interests of the company may seem to require.”

He testified that Mr. Sisson was present at the time the resolution was adopted. He was asked whether anything was said by Mr. Sisson or to him or in his presence why that resolution was passed, and he answered, “Yes, sir.” He thereupon, in answer to a question propounded, proceeded to state that Mr. Sisson had made a claim at different times that the company owed him for services, and that his salary was a certain amount which he did not at that time recollect, and that the resolution, as far as he was concerned in voting for it, was intended to suspend any further claim of that kind on his part. He further stated that he was quite sure he sent a copy of the resolution to Mr. Sisson. Upon cross-examination he was asked, “ Do you recall putting in the words if any exists,’ ” and answered “ I do. not at this moment recall the circumstances which led me to put those words in that resolution.”

And this was followed by this question: “ Is it not a fact that you were under the impression that the company was not liable at all?” That question was objected to as incompetent, irrelevant and immaterial; the objection was overruled and the defendant excepted. The witness answered, “I was of that impression.” It will be remembered that the issue which was in process of investigation was whether the company or the defendants in this action were liable for the services which were rendered, and for which the plaintiff sought to recover, and that Carpenter had been secretary and treasurer and the lawyer of the company ; indeed he was, beside, the attorney of the company in an action brought against it by the plaintiff.

All these circumstances taken into consideration appear to lead to but one conclusion, and that is that the question should not have been allowed. It contained a suggestion that the company were not liable, thus directly affecting the issue to which attention has been called, and which was confirmed by the answer, namely: “I was of that impression.” The jury had 'been empanneled for the purpose of deciding which was liable, the company or the defendants, and the conclusion was to be dependent upon competent testimony; not upon impressions with regard to the liability of the company or the defendants, but upon facts. It is impossible to say that the admission of that evidence worked no prejudice, in consequence of the triple character of Mr. Carpenter, namely, lawyer, secretary and treasurer; and for this reason, even if no other existed, the judgment should be reversed and a new trial ordered But there is still a serious objection to be considered.

The defendant Yost had testified in the cause, and the learned judge in submitting the case to the jury said that Messrs. Blanchard and Yost, the defendants, had both testified on their own behalf, each one of 'them denying that he ever had such conversation with the plaintiff, as stated by the latter, in reference to an agreement to employ him and pay him the amount of money stated as salary or any other sum from their own pockets; and he said to the jury: “You see that there is a direct, irreconcilable conflict of testimony; that either the plaintiff or Yost and Blanchard are very much mistaken in regard to this alleged interview. The plaintiff was certain that there was an interview, and that they had this conversation. The two defendants positively deny there was any such interview or. any such conversation.”

During the trial the defendant Yost on cross-examination was asked to look at a paper presented to him and to say if he was the person mentioned in it. It was objected to, but withdrawn. The paper purported to be an exemplified 'copy of the record of the indictment and conviction of Yost of perjury in the United States court of Pennsylvania; and the court having examined it, overruled the objections to its informality and insufficiency and the paper was put in evidence under the defendant’s exception. Mr. Yost was then recalled and examined in reference to the conviction to which the exemplified copy spoken of referred. He was asked: “Who was president of the United States at that time?” It was objected to as irrelevant, incompetent and immaterial ; the objection was sustained and the defendant excepted. He was then asked: “When did the president of the United States at that time grant you a pardon of the alleged offence?” To which there were the same objection, ruling, and exception. He was then asked: “ What were the reasons given to the president of the United States for the granting of your pardon?” The same objection,ruling and exception. Then followed the questions: “ Did you go to jail under that conviction? How long were you in jail under that conviction?” Both of which were excluded and exceptions taken.

The so-called exemplified copy contained this statement at the end of it: “September 26, 1872—Copy of pardon filed.” It did not appear when the pardon was filed nor did it state. It did not show when the original pardon was granted, or when it was delivered to and accepted by the defendant, as will have been seen. It only mentions when the copy was filed in the clerk’s office.

Tire object of these questions was to show, indeed" it must be so assumed, the promptitude with which the pardon itself was granted, the reasons why it was granted, and the time when the defendant was discharged. All these facts would necessarily have bad a very important bearing on the question of the credibility to be given to the witness. It may be assumed for the purposes of this exception that these questions would have demonstrated his innocence, or a due sense of the impropriety of the conviction to which the record refers.

It was held in Sims v. Sims, 75 N. Y., 466, that if such a record as that mentioned was competent, it was not conclusive as to the fact ..of the commission of the crime charged, but might be rebutted. In that case, the witness having testified as a witness in his own behalf, a record of his conviction in the state of Ohio for a felony was offered by the plaintiff, and received in evidence. The defendant was thereupon asked by his counsel whether he was guilty of the offense of which he had been convicted. This was objected to and excluded, and erroneously, as decided by that adjudication.

The principle of that case applies here. The defendant had a right to show the circumstances under which the pardon was granted, which the questions objected to and excluded were designed to accomplish; and for that reason, if no other existed in the case calling for such a determination, a new trial should be granted.

Ordered accordingly, with costs to abide the event.

Daniels, J.—I agree to the result on the objection first examined.

Van Brunt, P. J., concurs.  