
    JOHN P. BRANCH, et al., Appellants, v. LAZARUS LEVY, et al., Respondents.
    
      Witness—when credibility of, must be assumed.
    
    Where'the plaintiff voluntarily calls the defendant as a witness, as to matters not merely formal,—upon a motion for a dismissal of the complaint, the judge is bound to consider him a credible witness as to the facts testified to by him, whether upon the direct or upon the cross-examination. 
    
    
      It seems, that in such case defendant must be held credible as against the plaintiff, even as to matters testified to by him when subsequently called by the defense..
    In this case, the court held that the complaint was properly dis- ; missed.
    , Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided December 6, 1880.
    Appeal from judgment.
    The facts are stated in the opinion.
    
      Grimball & Tunstall, attorneys, and R. B. Tunstall, of counsel, among other things, urged:
    I. It cannot be claimed that because the defendant Borg was not directly contradicted, the complaint must have been dismissed on his part. A court cannot dismiss a complaint on the testimony of the witness, even though it be not directly contradicted, if the story of the witness is improbable, or if the witness be an interested party (Elwood v. Western Union Tel. Co., 45 N. Y. 553; Kavanagh v. Wilson, 70 N. Y. 177; Gilder-sleeve v. Landon, 73 Id. 609; Brooklyn Crosstown R. R. Co. v. Strong, 75 Id. 591). Borg was a defendant, and his story was improbable. Again, “ A party is not bound by the admission of his adversary, of which he gives evidence, but is at liberty to use it so far as it makes in his favor, and to disprove the residue —that is, he is not estopped by it” (Mott v. Consumers’ Ice Co., 73 N. Y. 550). Nor are the plaintiffs bound by the testimony of the defendant Borg, because they called him. He was called merely on a technical point—to prove the writing of a letter—and was not examined by the plaintiffs further. And moreover, the Code expressly declares—“The testimony of a party, taken at the instance of the adverse party, orally or by deposition, may be rebutted by other evidence” (Code Civ. Pro. § 838).
    II. It was error to allow the defendants’ counsel to bring out his defense on the cross-examination of the witness, Borg. The plaintiffs had called the defendant as a witness, merely to prove the writing of a letter. They were compelled to do this by the court. They examined the witness on no other subject—hence the defendants were limited in their cross-examination to this one point, and in allowing the defendants to bring out their whole defense was error (1 Greenl. Ev. § 445).
    
      Burton N. Harrison, for respondent, among other things, urged:
    I. By introducing the defendant Borg, and swearing him as their own witness, as they did, plaintiffs are estopped from denying his credibility. That witness testified, unequivocally, to facts which destroy the whole theory of plaintiffs’ case. There is no pretense that, in doing so, the witness took plaintiffs by surprise, or practiced any deceit upon them. There was no necessity for the introduction of this witness by plaintiffs. They could have called the person who wrote the letter they desired to prove to have been written by authority of defendants; or, if not, and if they found themselves entangled in an unexpected difficulty on the trial, and if they were unwilling to vouch for the credibility of Borg by swearing him as their own witness, and if they were unwilling to rest their case without proof of the letter in question, they could have withdrawn a juror or submitted to a non-suit. Even if there was any other testimony, or any evidence of any kind, in the case, which contradicted . the witness, Borg, the plaintiffs could not, under the circumstances, have availed themselves of it; there can be no contention that Borg was innocently mistaken as to the very fact at issue. For the purposes of this case, it must be held that, either the essential, absolute facts are exactly as Borg swore they are, or that Borg is entirely incredible as a witness. If the facts are as he swore, the judgment must be affirmed; and the plaintiffs cannot here open their mouths to say that their own witness is utterly incredible; certainly they cannot do so when the witness is not contradicted by anything in the case, but swears to facts which harmonize and are consistent with all the facts in evidence (5 Den. 112 ; 56 N. Y. 590 ; 4 Id. 303, 311). The rule is rigid that: “ Where unimpeached witnesses testify distinctly and positively to a fact, and are uncontradicted, their testimony should be credited and have the effect of overcoming a mere presumption” (45 N. Y. 553). The exceptions to, first, the strict cross-examination of plaintiffs’ own witness in reference to the circumstances' under which the letter, as to which they had examined him, was written ; and, next, an examination (which was, indeed, a fair and proper extension of the same cross-examination) into the full particulars of the transaction, are not good. As was said by Sedgwick, J., delivering an opinion of the general term of this court: “ The rule in this State (1 Greenl. Ev. § 445; Jackson v. Varick, 7 Cow. 242; Varick v. Jackson, 2 Wend. 251; Fulton Bank v. Stafford, 2 Id. 483; Bogert v. Bogert, 2 Edw. Ch. 403) is, that when a witness is placed upon the stand and examined, even as to formal matters, he is thereby made a witness for all purposes, and may be cross-examined in the whole case” (34 Super. Ct. 549). “When a witness has been sworn in chief, the opposite party may not only cross-examine him in relation to the point which he was called to prove, but he may examine him as to any matter embraced in the issue. He may establish his defense by him without calling any other witnesses ” (2 Wend. 483).
    
      
       See Hodge v. City of Buffalo (1 Abb. New Cas. 356), and note on weight .of testimony of parties.
    
   By the Court.—Sedgwick, Ch. J.

On the trial, it appeared that if one Harrison acted as broker for the defendants, in selling certain coupons to the plaintiffs, the defendants were liable to plaintiffs for not delivering them, but if Harrison had bought the coupons from the defendants and then sold them to plaintiffs, the defendants were not liable.

The plaintiffs sustained their position that Harrison was an agent, by certain letters and circumstances, which, in the absence of explanation by defendants, made a question for the jury. But there was no admission by any letter of defendant that there was such agency, nor was there any direct proof on that subject, excepting such as was given by one of the defendants. When on the stand, he swore that Harrison was a buyer of the coupons from the defendants, and not their agent. This testimony, if true, was not inconsistent with any other testimony, but furnished the explanation that the documents and circumstances called for. In order to justify the court in dismissing the complaint, it was only necessary to determine that the defendant was a, credible witness. I am of opinion that the judge was bound to hold the witness credible, from the fact that the plaintiffs had called the defendant as their own witness, and thereby presented him as credible. It is suggested that these facts came out on cross-examination. It would make no difference at what time they were called out, even if on direct examination as a witness for the defense, provided the plaintiffs had previously called him and presented him to a jury as credible. They could not thereafter gainsay that. The purpose for which the plaintiffs called the defendant as a witness was not formal, nor* were they obliged by law to call him. Their action was voluntary, and when they called him to the book to be sworn, they admitted and asserted that he would be bound by the obligations of an oath. The circumstances did not allow a supposition that he might, be mistaken, and that his testimony, therefore, might be corrected by the other testimony.

I think that the rule on this subject applies to a party called as a witness by the opposite party. There would be the same inconsistency, in case of a party, in asserting that he was not a credible witness as to some things, while he was as to others. Credibility cannot be divided. It is attached to the moral character. I therefore- think that the court was correct in holding that, as against the plaintiff, who called the defendant, the testimony of the latter should be believed, and the complaint dismissed.

This view of the legal force of the defendant’s testi- . mony renders unnecessary an examination of the exception to the admission of certain letters of the defendants.

The judgment should be affirmed, with costs.

Freedman, J., concurred.  