Opinion
March, 1894.
Johnston Johnston, for appellant.
Kohn, Ruck Lippmann, for respondent.
This is an appeal from a judgment in favor of the defendant and against the plaintiff, and from an order denying a motion for a new trial.
This action is brought upon a judgment recovered by the above-named intestate against the defendant in the Marine Court of this city on the 4th day of April, 1874. The answer in substance pleads payment, and the case was submitted to the jury on that issue.
The appellant insists that the trial justice erred in the exclusion of certain testimony, as follows: An examination of defendant taken in proceedings supplementary to execution in the United States court for the southern district of New York, which examination disclosed that between the years 1879 and 1883 defendant was insolvent.
The trial justice properly excluded this testimony.
It has been repeatedly held ( McCulloch v. Dobson, 133 N.Y. 124; Fitch v. Kennard, 46 N.Y. St. Repr. 271) that a witness cannot be impeached by proof of declarations made out of court before or after the trial, contradictory of his testimony, until a proper foundation is laid for the impeachment by interrogating the witness himself in regard to that statement. No such foundation was laid in this case, and no attempt was made to examine the witness as to the testimony excluded.
The other exceptions in the case do not warrant us in disturbing the judgment.
The judgment should be affirmed, with costs.
VAN WYCK and McCARTHY, JJ., concur.
Judgment affirmed, with costs.