Opinion
Argued October 28, 1885
Decided November 24, 1885
Nathaniel C. Moak for appellant. Amasa J. Parker for respondent.
No error was committed by the referee in the exclusion of evidence of defendant's arrangement with Erastus Corning Sr., as to the terms under which defendant received the moneys for which the recovery was had in this action.
The evidence offered involved a personal transaction between the defendant and a deceased person and clearly came within the prohibition contained in section 829 of the Code of Civil Procedure. The plaintiff had offered in evidence the books of account of the old firm and of the corporation. The plaintiff had testified that neither he nor the company ever authorizd any money to be advanced to the defendant by way of payment for his services. Upon a cross-examination by the defendant's counsel the plaintiff had also testified, among other things, "I know there could have been no arrangement between defendant and the late Erastus Corning as to payment for defendant's services, from what Mr. Corning told me, and I had entire charge of his business." It is claimed that what plaintiff testified to on the cross-examination was necessary to explain what he had previously testified to on his direct examination, and hence the evidence offered was competent. We think the testimony offered was not competent on any such ground-The defendant was not required to examine the witness in order to explain his testimony upon the direct examination, by introducing evidence as to the declarations of Mr. Corning Sr., and by doing so did not open the door to the introduction of conversations had by him with a deceased person. Even if it may be assumed that this testimony related to the same subject in regard to which the plaintiff had given evidence, it was not given by the plaintiff in his own behalf so as to authorize a contradiction of the same. It was drawn out on a cross-examination by the defendant's counsel and cannot therefore be considered to have been given on behalf of the plaintiff and for that reason could not properly be contradicted. There is no rule which authorizes a party to contradict evidence given by his adversary, as to a transaction with a deceased person, which he has himself introduced, and the Code does not provide for any such case. The testimony being introduced by the defendant himself he was not authorized to contradict it by showing an interview with a deceased party in relation to the same subject.
It may be added that it is not apparent that the introduction of the books of the firm in connection with the testimony given by Erastus Corning, Jr., furnished any ground for the cross-examination of the witness in reference to a conversation had between him and a deceased person, or rendered the evidence offered competent for the purpose of exonerating him from the liability established by the proof given. The testimony offered was indefinite and did not of itself include any conversation with a deceased party or purport to relate to the evidence which had been given, and in this respect it was also liable to objection.
The case of Lewis v. Merritt ( 98 N.Y. 209) cited by the appellant has no application.
The evidence that the defendant had not been on the payroll of the partnership or corporation for a number of years, was competent as a part of the res gestæ and tended to prove that he was not in their employment.
Evidence was introduced and received under objection and exception to prove that large sums had been expended by the company in manufacturing different machines, which were charged to the horse-shoe account. This proof bore upon the question of fact to be decided. The defendant had previously proved that he had taken out eight patents for the different machines he had invented, and it had been proved, without objection, that the company had paid for all the machines and changes in them. The character and extent of the work and the distinction which was made between the horse-shoe account and the private account of the defendant, which were well known to the defendant, were circumstances relating to the transaction between the parties, and hence the evidence was competent. No other question demands comment.
The judgment should be affirmed.
All concur.
Judgment affirmed.