
    Jacob Wallach et al., Respondents, v. Dora Kalccheim, Appellant.
    (Supreme Court, Appellate Term,
    November, 1898.)
    Witness — Hostility — Proof by him that his adversary caused his arrest.
    A material witness for the plaintiff may, upon cross-examination, be asked whether the defendant had not-caused his arrest and arraignment in a Police Court for larceny, as the evidence is admissible in order to show hostility; but it must be strictly limited by the court to that issue, to the end that the jury may not infer that the evidence is competent in impeachment of the general character of the witness.
    Appeal from a judgment rendered upon the verdict of a jury in favor of the plaintiffs, in the Municipal Court of the city of Hew York, borough of Manhattan, ninth district.
    Ignatz F. Aepfel and Emanuel Hertz, for appellant.
    Oscar J. Hochstadter, for respondents.
   Beekman, P. J.

The plaintiffs seek to recover the amount of certain damages suffered by them by reason of injuries to their property which they allege were occasioned by the negligence of defendant’s servant, one Borgernicht, while engaged in the performance of his duties as such. The defendant, by her answer, put in issue all of the allegations of the complaint, so that it became necessary for the plaintiffs to establish the fact that the relation of master and servant existed between the defendant and Borgernicht.

The latter was called as a witness by the plaintiffs and his evidence was so freely given and was so injurious to' the defendant that her counsel endeavored to show upon his cross-examination that he was a hostile witness. To that end he was asked whether the defendant had not caused his arrest for larceny, and also whether he had not been arrested and taken to a police court upon a charge made by the defendant against him. The plaintiffs’ counsel objected generally to these questions, and his objections were sustained. We think that this was error, for which the judgment must be reversed.

It is true that where the object of such an inquiry is to impeach the general character of a witness, evidence merely of the fact that he has been charged with the commission of a crime is not admissible; there must be proof of a conviction. Van Bokkelen v. Berdell, 130 N. Y. 141, 145. If that had been the sole purpose of the questions that were so asked, the ruling of the trial justice would not be open to criticism, but it is plain from the very form of the inquiry that the object of defendant’s counsel was to show the existence of relations between the witness and the defendant which would justify the assumption that the witness was a hostile one, a fact which it was undoubtedly the right of the defendant to elicit if she could. As the proof offered tended to establish that fact, if was on that ground pertinent and admissible. Such evidence, however, should be strictly limited to this aspect of the matter, and it should be made clear to the jury that it should be considered by them as affecting the evidence of the witness solely on the ground on which we have held it should have been admitted.

In view of the conclusion to which we have come which necessitates a new trial, it is unnecessary for us to consider the other exceptions in the case.

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

Guzdebsleeve and Giegkerich, JJ., concur.

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