
    Edwin Perham, Respondent, v. Residore Noel, Appellant.
    
      Witness—cross-examination as to whether he has leen convicted of a crime and as to his having been in jail.
    
    It is proper on the cross-examination of a witness to ask whether.he has keen convicted of a crime or misdemeanor.
    
      Semble, that the question as to how many times the witness has keen in jail, rests in the discretion of the court.
    Appeal by the defendant, Residore Noel, from a judgment of the County Court of Clinton county, entered in the office of the clerk of the county of Clinton on the 8th day of February, 1897, affirming a judgment of a justice of the peace.
    
      H. S. Haff, for the appellant.
    
      John S. Booth, for the respondent.
   Merwin, J.:

The plaintiff claimed, to recover for work, labor and services. He was an important witness in his own behalf. "Upon his cross-examination by the counsel for the defendant he was asked the following questions:

“ How many times have you been in jail ? How many times have you been in State prison? ” Each of these questions was objected to as immaterial, and in each instance the objection was sustained. The defendant then offered to prove by the witness that he had been convicted of felony and been sentenced to State prison. The plaintiff objected to this as immaterial, and upon the further ground that “ a record of conviction can only be produced to impeach the witness’ testimony.” The objection was sustained and the evidence excluded.

It was competent for the defendant, on cross-examination, to prove by the witness that he had been convicted of a crime or misdemeanor. (Code Civ. Proc. § 832; People v. Burns, 33 Hun, 296 ; People v. Noelke, 94 N. Y. 137.) In People v. Hovey (29 Hun, 382) it was held competent under section 832 to ask a witness how many times he had been in prison. The allowance of the question as to the witness being in jail was somewhat in the discretion of the court (Real v. The People, 42 N. Y. 270), though it is said that the discretion should be liberally exercised with a view to arrive at the truth." The exclusion of the offered proof as to conviction was error, and prejudicial to the rights of the defendant.

It is suggested that the offer was improper, but no objection was taken to the form of it, or that a direct question should be asked.

The evidence of the witness, was quite material, and, as to some of the disputed facts, he was the only witness on the part of the plaintiff. The error referred to cannot be properly disregarded. It follows that there must be a reversal.

' All concurred.

Judgment of the County Court and of the Justice’s, reversed, with costs in all the courts. ’  