
    Fritz A. Ankersmit and Ano., App’lts, v. Simon Tuch, as Assignee, etc., Impleaded, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 26, 1889.)
    
    Evidence—When competent to impeach ob contbadict witness.
    In an action to recover goods obtained by means of false representations of solvency, after the plaintiff rested, the defendant’s assignor was sworn and denied the making of the representations. Upon his cross-examinatian he admitted that he had purchased goods of one B. about that time, but denied that he had stated to him that he was solvent. The plaintiff then attempted to prove by B. that the defendant’s assignor did so state to bim, which evidence was excluded on the ground that it should have been introduced as part of the plaintiff’s affirmative case. Meld, that a party bas 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 matter upon which he has been called upon 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 be first 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; that the plaintiffs were entitled to have the evidence considered by the jury.
    
      Appeal from a judgment of the general term, first department, affirming a judgment entered on a verdict.
    
      Frederick P. Foster, for app’lts; Alfred P. Seaman and E. E. Wise, for resp’t.
    
      
       Reversing 15 N. Y State Rep., 312.
    
   . 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 worth $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 he 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 Ihen asked: “Did he state to you that he was solvent; that he was worth $20,000, 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 compe- , tent. 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, claiming that there had been such a part-performance of the contract as to entitle 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 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.

Rapallo, 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 concur.  