
    Halsey Fitch et al., Resp’ts, v. Alexander A. Kennard et al., App’lts.
    
      (City Court of New York, General Term,
    
    
      Filed May 25, 1892.)
    
    Witness—Impeachment.
    A witness whose testimony has been taken by commission and who is not in court cannot be impeached by proof of other statements out of court, unless his attention was called to them in the examination made under the commission.
    Appeal from judgment in favor of plaintiffs, entered upon verdict.
    
      Gruber & Landon, for app’lts; J. G. Flammer, for resp’ts.
   McCarthy, J.

This action was commenced on April 7, 1891, to recover the sum of thirty-six and 73-100 dollars ($36.73), damages, which the plaintiffs claimed to have sustained in consequence of the defendant’s breach of contract, growing out of the following facts :

The plaintiffs being commission merchants, the defendants offered to sell and ship to them upon the night of March 18, 1891, from Chicago to New York city, a carload of Indiana eggs at twenty and a half cents per dozen, delivered in Hew York, freight prepaid.

The plaintiffs paid that sum therefor upon production of the defendants’ bill of lading and draft and before the arrival of the said eggs; but owing to neglect and delay on the part of the defendants, the said eggs were not shipped on March 18, 1891, and consequently did not arrive in New York city until Tuesday, March 24, 1891, when they ought to have arrived in due course of transportation on Monday, March 23, 1891, had the said eggs been shipped as agreed upon.

It was proven that the market in New York city for Indiana eggs on Monday, March 23, 1891, was twenty-four and a half cents per dozen, at which price these plaintiffs could have easily sold them, but on Tuesday, March 24, 1891, the quotations for Indiana eggs broke from 24-¡- cents per dozen to 21f cents per dozen, to their loss of $297.'33, the said shipment having contained 10,312 dozen eggs.

The plaintiffs further proved that upon the arrival of the said eggs the plaintiffs inspected them and found that they were not Indiana eggs as reported, but were what is known in the trade as “ Kentucky ” or “ Southern ” eggs, having a value of at least one-half cent per dozen less than Indiana eggs, making an additional loss upon the said shipment of fifty-four and 6-100 dollars ($54.06).

The plaintiffs were also obliged to pay fifteen and 34-100 dollars ($15.34) extra freight thereon before they could obtain possession thereof.

The jury rendered judgment for the plaintiffs for the sum of three hundred and twelve and 67-100 dollars ($312.67), disallowing the claim of fifty-four and 06-100 dollars ($54.06), being the difference between northern and southern eggs, as to which subject the main dispute upon the trial arose.

The exceptions taken to the answers to the interrogations propounded to the witnesses Dodd and Davis, we think, are not well taken.

Their answers are, in the main, the substance of the conversation, and are the statements of the agent of the defendants, and therefore binding on them.

It is very clear that the defendants, having the quantity of eggs for sale, directed the firm of Davis & Co. to sell the same, giving terms and times of shipment

In regard to some of the answers, it does not appear but what the members of the firm of Davis & Co. had conversations in relation to the matter.

The defendants recognized the acts of these witnesses, since they sent the bill of lading marked Exhibit D. and thg drafts marked Exhibit D. for two thousand one hundred and thirty-nine and 46-100 dollars ($2,139.46) to these plaintiffs.

The only other question to be considered is the exceptions taken to the rulings of the court on the questions put to Mr. Kennard and Wen.

It appearing from the testimony, and not contradicted, that Davis & Co. were the agents of the defendants, the defendants were precluded from giving any conversation between them and the witness Dodd.

If the defendants’ counsel as he asserts in his brief, wished to show that their agent was mistaken in his testimony, then the questions were too general and did not indicate the purpose of the same, nor was any such statement made to the trial j udge.

Besides the witness, Dodd, not being in court, his testimony having been taken by commission, could not be impeached by proof of other statements out of court, unless his attention was called to it in the examination made under the commission. Stacy v. Graham, 14 N. Y., 492.

Comstock, J., in this case at page 498, says: “ The rule does not appear to be uniform in all the states that, in order to impeach a witness by proving previous declarations made by him inconsistent with his evidence, he must be first interrogated as to what he has said. 17 Mass., 160; 6 N. H., 465; 5 Conn., 557; 8 Greenl., 42.

“ It prevails, however, so generally that the cases which are the other way cannot now be considered as authority.

“ The doctrine is well settled in England, and in this state it has now become so familiar that the authorities need not be cited.

“If this rule in question is founded upon any good reason (and of this we do not admit a doubt) there can be none for discriminating in the case of a deposition taken before the trial.

“ If the party against whom the witness is examined knows of the inconsistent statements, which he expects to prove at the trial, he can attend and propose such interrogations as the rule requires- in order to lay the proper foundation for the intended impeachment.

“ If he does not know at the time, but the statements come to his knowledge afterwards, and before the trial, he can apply for .a commission or move a postponement until the evidence can be procured, if he thinks it material to his case.

“ The mere absence of the witness has never been considered a reason for allowing his unsworn statements to be proved in order to affect his credibility. * * *

“ The principle on which the practice essentially rests is that both the party and the witness are entitled of right to any explanation which the latter can give of the statements imputed to him.

“ When the witness is present he can be recalled by the same party for the purpose of explanation after the impeabhment has been attempted, but if he happen to be absent then the right is obviously lost.” See Van Ness v. Bush, 14 Abb. Prac., 37.

We find no errors, and judgment should be affirmed, with costs.

Newburger, J., concurs.  