
    ANKERSMIT v. TUCH.
    N. Y. Court of Appeals, Second, Division;
    
    
      March, 1889.
    
      Trials ; evidence.'] Although the omission of the plaintiff to prove a fact as part of his affirmative case before closing, deprives him of the right to make use of that fact as affirmative evidence, yet if his adversary gives evidence to the contrary of the fact, the plaintiff may in rebuttal give evidence to establish the fact by the way of contradiction. So held, where the evidence offered in rebuttal, consisted of the proof of statements made by defendant’s witness contrary to testimony given on cross-examination, his attention having been called on cross-examination to the statements.
    Appeal from a judgment of the General Term of the supreme court, in the first department, affirming a judgment rendered at the circuit, dismissing the complaint.
    This action was -brought by Fritz Ankersmit and Emil Klein, co-partners, against John D. Bluxome, and another, as the firm of Bluxome &Co., and Simon Tuch, as assignee for creditors of Rudolph Moeller, and the sheriff of the city and county of New York, to recover the possession of eight bales of Sumatra tobacco and damages for their detention.
    The facts appear sufficiently in the opinion.
    
      Frederick P. Foster, for the appellants.
    I. Evidence impeaching Moeller’s credibility was erroneously excluded (Winchell v. Winchell, 100 N. Y. 159 ; Romertze v. East River Nat. Bank, 49 Id. 577; People v. Schuyler, 106 Id. 298, 308; Homer v. Everett, 91 Id. 642-4; Sitterly v. Gregg, 90 Id. 686-8; Sparrowhawk v. Sparrowhawk, 73 Id. 591; Schell v. Plumb, 55 Id. 592, 599; Sloan v. N. Y. Central, etc., 45 Id. 125, 127 ; Rockwell v. Brown, 36 Id. 207, 210; Chapman v. Brooks, 31 Id. 75, 86-7; Wright v. Nostrand, 94 Id. 31, 41; Stape v. People, 85 Id. 390, 393-4; Foster v. Newbrough, 58 Id. 481 ; Patchin v. Astor Mut. Ins. Co., 13 Id. 268).
    
      II. For the purpose of impeaching Moeller, the evidence was not competent in chief; it could only be offered at the time it was (Gaffney v. People, 50 N. Y. 423; Hart v. Hudson River Bridge Co., 84 Id. 56, 60; Romertze v. East River Nat. Bank, 49 Id. 577.; Pendleton v. Empire Stone D. Co., 19 Id. 13; Stacy v. Graham, 14 Id. 492; Sloan v. N. Y. Central, etc., 45 Id. 125, 127; Hubbard v. Briggs, 31 Id. 518, 536 ; Newcomb v. Griswold, 24 Id. 298, 301; Varona v. Socarras, 8 Abb. Pr. 302; Winchell v. Winchell, 100 N. Y. 159).
    III. The impeaching evidence was not collateral (Kininer v. Del. & Hudson Canal Co., 52 Super. Ct. [J. & S.] 162; Winchell v. Winchell, 100 N. Y.159; Foster v. Newbrough, 58 Id. 481; Butler v. Collins, 12 Cal. 457; Hubbard v. Briggs, 31 N. Y. 518, 538).
    IV. Fraud and intent not to pay for the tobacco was established as a matter of law (People v. Cook, 8 N. Y. 67, 75; Lomer v. Meeker, 25 Id. 361; Sturtevant v. Ballard, 9 John. 337, 342; Durell v. Haley, 1 Paige, 492; Chapman v. Lathrop, 6 Cow. 110, 117-8; Wright v. Brown, 67 N. Y. 1, 5; Donaldson v. Farwell, 93 U. S. 631, 633; Van Neste v. Conover, 20 Barb. 547; Carpenter v. Roe, 10 N. Y. 227; Reade v. Livingston, 3 John. Ch. 481; Bayard v. Hoffman, 4 Id. 450; People v. Briggs, 47 Hun, 266, 268; Harris v. White, 81 N. Y. 532, 547-8; Wylde v. Northern R. R. Co., 53 Id. 156,164; Phelps v. Borland, 103 Id. 406, 413; Sutter v. Van Derveer, 47 Hun, 367; Muller v. McKesson, 73 N. Y. 195, 198; O’Neil v. James, 43 Id. 84; Provost v. McEnroe, 102 Id. 650; Fargo v. Milburn, 100 Id. 94, 96 ; Herendeen v. Dewitt, 49 Hun, 54; Brady v. Cassidy, 104 N. Y. 147, 155; Dwight v. Germania Ins. Co., 103 Id. 341, 350; Glacius v. Black, 67 Id. 563, 568; Tooker v. Arnoux, 76 Id. 397).
    
      Alfred P. W. Seaman and E. E. Wise (Seaman & Spader, attorneys) for the respondent.
    I. The testimony was properly excluded because it was not in rebuttal (Hastnigs v. Palmer, 20 Wend. 225; Ford v. Niles, 1 Hill, 300; Rex v. Stimpson, 2 Carr & P. 415; Silverman v. Foreman, 3 E D. Smith, 322; Marshall v. Davies, 78 N. Y. 420).
    II. The testimony was properly excluded because it was not admissible to impeach defendant’s witness (Carpenter v. Ward, 30 N. Y. 243; Stokes v. People, 53 Id. 164; People v. Ware, 17 Weekly Dig. 115; aff’d, without opinion, 92 N. Y. 653; People v. Cox, 21 Hun, 47; aff’d 83 N. Y. 610; Attorney-General v. Hitchcock, 1 Exch. 91; Pollock v. Pollock, 71 N. Y. 137; Thompson v. Blanchard, 4 Id. 303; People v. Safford, 5 Denio, 112; Nichols v. White, 85 N. Y. 531).
    III. Although plaintiffs could not claim it as matter of right, they were allowed to impeach witness by defendant’s witnesses, who contradicted his testimony that lie had made ■no representations to others.
    IY. The jury are the sole judges of the facts, and their verdict will not be disturbed unless it is so clearly against the weight of evidence as to indicate passion, prejudice, mistake or corruption, or unless the verdict is so against a striking preponderance of evidence that a common exercise of judgment demands its reversal (Morss v. Sherill, 63 Barb. 21; Roosa v. Smith, 17 Hun, 138 ; Gray v. Del., etc. R. R. Co., 48 Super. Ct. [J. & S.] 121; Gescheidt v. Quirk, 5 Civ. Pro. R. (Browne),38; Beckwith v. N. Y. Central, etc. R. R. Co., 64 Barb. 299; Godfrey v. Moser, 66 N. Y. 250).
   Haight, J.

This action was brought to recover the possession of eight bales of Sumatra tobacco, purchased by the defendant’s assignor, as is alleged by means of false and fraudulent representations as to his solvency, and with the intent not to pay therefor. Upon the trial the plaintiffs gave evidence tending to show that, before making the sale of the goods in question, the defendant’s assignor represented and stated that he was solvent and wórtli $20,000 ; that his wife had $10,000 which was in the stock at the risk of the business. After the plaintiffs had rested, the defendant’s assignor was sworn as a witness for the defendant, and denied that he had made any such representations. Upon the cross-examination he was asked if he had not purchased goods at about that time of various individuals, among whom were Schroeder & Bon, and he testified that he had, but that at the time of such purchase in August or September, 1885, Bon did not make any inquiry of him as to his financial condition, and that he did not say to Bon that lie was solvent and worth $20,000, and did not state to him that he had $10,000 in his business from his wife, which was at the risk of the business.

After he had rested, the plaintiffs called Bon as a witness, who testified that he sold the goods to the defendant’s assignor in August or September, 1885, and that, at that time he made a statement as to his condition. The witness was then asked “ Did he state to yon that he was solvent; that he was worth $12,000, and that the $10,000 which he got from- his wife was at the risk of the business ?” This was objected to as immaterial, incompetent and not in rebuttal. The evidence was excluded and an exception taken by the plaintiffs.

The court at' general term held that the statement made to Bon and others was competent as evidence in chief, and that the plaintiffs having rested without introducing it, left its subsequent admission discretionary with the trial court, and consequently, that the exception to its exclusion was not well taken.

It is doubtless true that the evidence was competent and could have been introduced by the plaintiffs as a part of their affirmative case for the purpose of showing an intent to cheat and defraud, and that their neglect to introduce it at that time deprives them of the right to make use of it as affirmative evidence. But a party has the right to impeach or discredit the testimony of an opponent, and such evidence is always competent. He may contradict the testimony of a witness as to any matters upon which he has been called to give evidence in chief, provided it is not collateral to the issue ; if it has reference to statements made to others his attention should first be called to the time, place and person to whom the statement is claimed to have been made, and if denied, such person may then be called to contradict him, thus discrediting his testimony as a witness.

This is what the plaintiffs attempted to do ; and we do not understand that it was discretionary with the trial court to exclude it. In the case of Winchell v. Winchell (100-N. Y. 159), the action was to compel a specific performance of a verbal contract for the sale of land. The plaintiff, who was the father of the defendant, claimed that there had been such a part performance of the contract as to-en title him to relief in equity. He testified, among other things, to the payment of the purchase money. The-defendant, on his direct-examination as a witness in his- own behalf, denied that he had ever received any payment upon the contract. On his cross-examination he denied that he had ever told any person, at any time, that his father had paid him for the land or any part of it. He was then asked whether he had not told Mr. Greenfield so at the time he-tendered a deed of the land for execution by the defendant, and he answered the question in the negative. E-apallo, J., in delivering the opinion of the court, says: “ The objection that the evidence was offered at too late a stage of the trial to entitle the plaintiffs as matter of right to introduce it, was not made, and the court did not place its-rejection on the ground that its admission was a matter of discretion. But, assuming that such discretionary power may now be set up, the evidence was clearly admissible in rebuttal for the purpose of contradicting the testimony of the defendant to the effect that no payment had been made,, and impeaching his credibility.”

It appears to us that this case is controlling upon the-question under consideration, and that the plaintiffs are,, consequently, entitled to have the evidence, which was excluded, considered by the jury. The judgment should be reversed and a new trial ordered, costs to abide the •event.

All the judges concurred.  