
    Miles J. Hawley, Appellant, v. Ann Hawley and Others, Respondents.
    
      Evidence tending to impeach a witness may be controverted by proof of her statements, inconsistent with such evidence, made to third parties.
    
    Where a duly executed but unrecorded assignment of a bond and mortgage from a father to his son is found among the papers of the father after his death, and in an action of partition involving the validity of the assignment the wife of the son testifies that the father delivered the assignment to the son before his death and that she subsequently redelivered it to the father for safe-keeping, which evidence is sought to be rebutted by testimony tending to show that the son’s wife knew nothing of the assignment until after the father’s death, it is competent, for the purpose of counteracting the attack upon her credibility, for the son’s wife to show that before the father’s death she and her husband requested an attorney to write to the county clerk to ascertain if the assignment had been recorded, and that she and a third person had had a conversation in relation to the assignment before the father’s death.
    Appeal by the plaintiff, Miles J. Hawley, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Chautauqua on the 22d day of Uovemher, 1898, upon the report of a referee.
    
      John Griffin, for the appellant.
    
      John G. Wicks, for the respondents.
   Spring, J.:

The action is partition, brought by an heir at law, and in the complaint it is alleged that the plaintiff is the owner of a bond and mortgage by assignment from his father, upon which there is unpaid the sum of $1,550. The only controversy in the case is over the assignment of this bond and mortgage.

John B. Hawley was the father of the present tenants in common of the land, and at one time was the owner of the bond and mortgage in question, and after his death, which occurred in 1893, an unrecorded assignment of the same, signed by said decedent and duly acknowledged, was found among his papers. The assignment, which was dated April 7, 1885, was received in evidence on the trial, and in proof of its delivery the widow of the decedent, who was his second wife, testified that before. their marriage an ante-nuptial agreement was made between them, and during these negotiations Mr. Hawley, senior, told her of this bond and mortgage and that he had assigned it to his son Miles, the plaintiff in this action.

The chief testimony, however, on which the transfer of this assignment rested was that of Ann Hawley, the wife of the plaintiff. • She testified that in April or May, 1885, the old gentleman came to'their house and handed the plaintiff the mortgage and assignment, saying: “ Here, Miles, is a mortgage and assignment on the Jamestown place. I told you I would give it to you; ” that the son took it and the father told him to give it to Anna, the wife of the plaintiff, to take care of, and the-papers were handed to her; that Miles then went away, -the father remaining to dinner; that as he started to leave he told Mrs. Hawley he feared she might lose the papers and she had better give them to Mm ; that he would take care of them for Miles, and she accordingly let him takb them.

The testimony in rebuttal of the evidence of Ann Hawley is, in the main, inferential. After the death of John B. Hawley his children met at his house and looked over his-papers and among them the bond, mortgage and assignment were found. It is claimed that' when this assignment was produced it was handed to Ann Hawley and she inquired what it was, adding": “ I can’t make it out.” There was considerable evidence of this same character and the argument is made that Ann Hawley knew nothing of this assignment until this meeting of the children of John B. Hawley after his death. This was an important item of testimony, and as the referee discredited the story of Ann Hawley the evidence must have been potential in rebutting her positive testimony of the delivery of the assignment of the bond and mortgage.

To counteract the effect of this imputation' upon Ann Hawley, evidence was offered that during the lifetime of John B. Hawley she knew of this assignment; that at the request of the plaintiff and his wife, an attorney, also named Hawley, wrote to the county clerk of Chautauqua county to ascertain if this assignment had been recorded. This attorney was swórn as a witness on behalf of plaintiff, and an attempt was made to show the conversation culminating in the writing of this letter, and the letter itself was produced; but the evidence, including the letter, was excluded by the referee. Again, it was sought to be shown, both by Ann Hawley and a Mrs. Lynch, that a conversation occurred between them in 1890 in relation to tiiis assignment, and that attempt was frustrated by objections interposed on behalf of defendants which were sustained by the referee. Exceptions were taken to the various rulings of the referee excluding all this class of evidence.

While the letter of the attorney may not have been competent, in the absence of explicit testimony showing that Ann Hawley knew what it contained at the time it was written, the rest of this excluded testimony was significant to repel the charge that Ann Hawley had fabricated her story of the delivery of the assignment. There was no motive in 1890 for her to make a false statement as to this assignment, and the- testimony referred to was competent to expunge the discredit resting upon the witness by the accusation that she knew nothing of the assignment until after the death of her father-in-law. The rule is thus stated in the head note to Robb v. Hackley (23 Wend. 50) and quoted approvingly in Matter of Hesdra (119 N. Y. 615): “ Where the witness is charged with giving his testimony under the influence of some motive prompting him to make a false or colored statement, it may be shown that he made similar declarations at a time when the imputed motive did not exist. So in contradiction of evidence tending to show that the account of the transaction given by the witness is a fabrication of late date, it may be shown that the same account was given by him before its ultimate operation and effect arising from a change of circumstances could have been foreseen.” (Herrick v. Smith, 13 Hun, 446 ; Baber v. Broadway & S. A. R. Co., 29 N. Y. Supp. 40; Vilas Nat. Bank v. Newton, 25 App. Div. 62.)

This is an exception to the general rule of evidence excluding hearsay testimony, and rests for its support solely upon the ground that a witness testifying to a material fact should have an opportunity to remove the stigma incident to testimony impugning his Veracity. It is not proof of any fact in the' case, but purely collateral, affecting the credibility of the witness.

We cannot say that the error in the exclusion of the testimony was immaterial. The case was close, and the testimony of Ann Hawley was very important and credence was not given to her story by the referee. If the plaintiff could have satisfactorily shown that she had knowledge of this assignment long before the death of John B. Hawley, it would have taken the sting out of the impeaching testimony, so far as it tended to show a lack of knowledge in her.

. The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide the event.  