
    Fritz Aukersmit et al., App’lts, v. John D. Bluxome et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 28, 1888.)
    
    Evidence—Rebuttal and impeaching—When properly excluded.
    In an action to recover possession of goods alleged to have been obtained by defendant fraudulently, evidence was given by plaintiff to show that the purchaser made representations as to his solvency, which were false, and then defendant, on his own behalf, denied making the representations, and denied, on cross-examination, having made statements to certain gentlemen named from whom he had purchased goods. Held, that evidence thereupon offered by plaintiff to prove that defendant had made statements to these gentlemen as to his financial condition, for the purpose of contradicting him, was properly excluded, such evidence being relevant testimony applicable to one of the issues which the plaintiff was compelled to establish by affirmative evidence, and as to which he was bound, before resting, to introduce all his evidence upon the subject.
    Appeal from a judgment rendered upon a verdict for defendant and from an order denying a motion for a new trial.
    
      George H. Forster, for app’lts; Seaman & Spader, for resp’ts.
   Van Brunt, P. J.

This action was brought to recover possession of twelve bales of Sumatra tobacco, the possession of which was alleged to have been obtained by the defendant’s assignor by false and fraudulent representations as to his solvency. The answer was a denial of the fraud.

The plaintiff in support of. the plaintiff’s claim proved the sale of the goods in September, 1885, offered evidence tending to show the making of some representations by the purchaser as to his solvency to the seller of the goods, and to Dunn’s Mercantile Agency and the falsity of such representations if made and proved, the making in December, 1885, of a general assignment for the benefit of creditors by the purchaser to the defendant and offered in evidence the schedules of assets and liabilities filed pursuant to law and a confession of judgment made by the purchaser to his wife, and rested.

A motion was made to dismiss the complaint, and denied.

The defendant then put upon the stand, as a witness in his behalf, Mr. Moeller, the purchaser of the goods, who admitted the purchase but denied making the representations attempted to be proved by the plaintiff.

Upon cross-examination he denied having made in August or September, 1885, any statements to certain gentlemen named from whom he had purchased goods.

After offering some additional proof, the defendant rested.

Thereupon the plaintiff put upon the stand the creditors, to whom it was claimed the purchaser had made statements and to whom his attention has been upon his cross-examination and offered to prove that he had also made statements to them as to his condition, for the purpose of contradicting him, which evidence was objected to upon the ground among others that it was not in rebuttal, which objection was sustained, and to this ruling the plaintiff duly excepted.

The jury having found a verdict for the defendant and a motion having been made for a new trial and denied, from the judgment and order thereupon entered, the plaintiff has taken this appeal.

The main ground for a reversal of the judgment rests upon the exceptions taken to the ruling above mentioned.

There is no doubt but that the plaintiff, in an action of this character, has the right to prove contemporaneous frauds for the purpose of showing the intent with which the purchaser made the representations to the seller of the goods in question, and that the evidence offered would have been entirely competent for that purpose had it been offered as part of the plaintiff’s original case, but such evidence was not in rebuttal, nor did it tend to impeach the defendant any more than in any case any evidence upon the main issue at variance with the evidence of a witness may be said to tend to impeach his testimony.

The issue of fraudlent intent was the one upon which this evidence was relevant and it was only upon this issue that it could be introduced.

If this is not so, then the evidence was collateral, and in respect thereto the plaintiff was bound by the answer of the witness.

Being relevant testimony applicable to one of the issues which the plaintiff was compelled to establish by affimative evidence befere he rested his case, he was bound before resting to introduce all his evidence upon this subject, and not merely make out a prima facie case and then introduce additional evidence upon the issue after defendant had rested.

The court might in its discretion have admitted the evidence,- and it probably would not have been error of which the defendant could take advantage, to have done so, but the court believed that the rule should be adhered to, and in this we think that he was clearly right.

But if he claimed that the evidence was offered for the distinct purpose of impeaching Moeller’s credit as a witness, and that as the questions asked of Moeller were not collateral, therefore the plaintiff was not bound' by his answers.

The evidence was clearly not collateral to the main issue and it is because of this very fact that the plaintiff was bound to introduce all his evidence in the first instance.

The declarations of Moeller as to his condition, made with intent to induce credit, were evidence in chief, and could have been offered even if Moeller had never been examined as a witness or questioned in respect thereto.

The cases cited by the learned counsel for the appellant in respect to the method of procedure to be taken where it is desired to contradict a witness by proving declarations which are inconsistent with his testimony, and which he denies having made, all relate to the declarations which could not have been offered in evidence until the person making the declarations had been put upon the stand and had given evidence upon the issues, which declarations fended to contradict or weaken the evidence given, and therefore have no bearing upon those cases where the declarations are admissible as evidence in chief, entirely independent of the fact as to whether the declarator has been or will be a witness.

_We think, therefore, that the question of re-opening the case to permit this evidence to be introduced, was within the discretion of the trial judge, and we see no reason for interfering with it.

Neither can we interfere with the verdict of the jury upon the ground that it was against the evidence.

There was charge and denial, the jury had the witnesses before them, and if they chose to believe the defendant, they had the right to do so, and we cannot say that they were manifestly wrong.

The judgment and order appealed from should be affirmed with costs.

Brady, J., concurs.

Daniels, J. (dissenting).

—The intent of the purchaser of the tobacco to defraud the plaintiffs in obtaining it was a material fact to be proved, before a recovery of the property could be secured by them. Evidence of like false representions made by the purchaser to other persons at or near the time of the purchase from the plaintiffs, to induce sales from them to him, were material and admissible as proof of that fraudulent intent. And being evidence as to a material fact within the issue, the plaintiffs were entitled to ask the purchaser who was sworn and examined as a witness for the defendant on the trial, whether he had made such statements. He was so interrogated, and in each instance denied the making of the statement including such alleged false representations. To contradict him, and in that manner impeach him as a witness, the plaintiffs afterwards proposed to prove his denials to be untrue. And that they were not permitted to do.

The rule of evidence which permits the party against whom a witness may be sworn and examined, to interrogate him concerning statements he may have made as to a material fact in issue, and upon his denying the statements allowing proof by way of impeachment, is not denied. But it was held at the trial not to extend so far as to include proof of facts admissible as part of the plantiffs case. The rule, however, has been subjected to no such qualifications, all that has been required is, that the inquiry as to statements made shall relate to a material fact in controversy, and when it does, there the right to empeach the witness by proof of the statement denied by him, is allowed to be given. And when so'given, it is not to add to or make out the plaintiffs case, but only to impeach the witness denying the making of the statements, and that the plaiptiffis failed to give the same evidence to promote or sustain their case, does not on principle seem to be any obstacle preventing them from using it after the witness had been called against them by way of discrediting his statements. The proof was admissible for a two-fold object. As to the first, the plaintiffs had lost their right to introduce it. But as to the second which only arose after Moeller had been cross-examined, their rights were unimpaired, and that was to impeach him in this manner as a witness. They might very well rest on their own evidence in presenting their case.

But after he was examined a new feature was presented, and that was the effect his testimony was to have with the jury, and that the law permitted them to avoid by proving his contradictory statements, to establish that his denials were untrue, and his evidence Unworthy of reliance. For these reasons it is concluded that the judgment ought to be reversed, and a new trial directed.  