
    Joseph Marino, Appellant, v. Lloyd Collis, Respondent.
    (Supreme Court, Appellate Term,
    June, 1907.)
    Examination of witnesses — In general — Interrogatories assuming facts.
    The assent of a witness to a question in which counsel assumes and asserts a fact that has not been testified to will not constitute evidence of it.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of New York, seventh district, borough of Manhattan.
    Joseph Pascocello, for appellant.
    E. Dudley Barlow, for respondent.
   Goff, J.

Apart from the denial of the defendant and the decision of the justice upon conflicting testimony, ‘there is no evidence of a promise by the defendant to pay for the board of the men. Plaintiff was questioned: “ What did Mr. Collis say to you, and what did you say to Mr. Collis in reference to furnishing men with board ? ” A. Well, Mr. Collis and my son talked about the contract. Mr. Collis said: ‘ You furnish me the men, build the shanty, put the men in, get your men on the job ’ and he was to pay me the board bill for the whole of his men, I paid it myself.” Even under the suggestion" of this leading question the answer does not state that the defendant promised in words or substance to pay for the board. The witness added, and he was to pay me the hoard bill.” This was clearly a conclusion of his own and not a statement of what the defendant said. The next question was: “ Mr. Collis said he would pay you the board bill for the men that would be working on the job ?” Now, Mr. Collis had not said anything of the kind. It was simply an assertion of counsel to which the witness gave his assent. But it was not evidence. It was typical of a vicious practice by which counsel assumes and asserts a thing which has not been testified to in the mistaken hope that an assent thereto will constitute evidence. If that were so it would permit" an attorney not under oath to introduce his assumptions under the guise of leading questions as evidence. The law condemns such practice. An examination of this case fails to show that any prejudicial error was -committed or that the justice did not determine the case in accordance with the preponderance of credible testimony.

The judgment should be affirmed, with costs.

Gildersleeve and Fitzgerald, JJ., concur.

Judgment affirmed, with costs.  