Summary
In Lindsley v. Miller (3 App. Div. 127, 128) this court held that it was not competent in order to affect the credibility of a witness, to ask him if "he had never been charged with `crooked driving,'" and "if he had recently been taken out of his sulky at Syracuse for `crooked driving.
Summary of this case from People v. DorthyOpinion
March Term, 1896.
D.F. Searle, for the appellant.
D.C. Burke, for the respondent.
This action was begun April 7, 1894, in the County Court of Oneida county to recover the purchase price, seventy-seven dollars and fifty cents, of a horse sold March 16, 1894, by the defendant to the plaintiff, which sale the plaintiff rescinded March 19, 1894, on the ground that it was procured by fraud. The defendant denied in his answer that he made any fraudulent representations when the horse was sold. The issue thus formed presented the only question of fact involved in the action. The plaintiff testified that the defendant made many representations which were false and fraudulent, upon which the plaintiff relied when he made the purchase. The defendant testified that he made no such representations. The parties by their testimony contradicted each other on every material question, and each attempted to corroborate his evidence by other witnesses. The important question was, which should be believed? When the defendant was under cross-examination he testified that he sometimes drove horses on race tracks. In reply to a question he testified that he had never been charged with "crooked driving." He was then asked if he had recently been taken out of his sulky at Syracuse for "crooked driving?" This question was objected to as incompetent and improper, and as not bearing on the question of credibility. The objections were overruled and an exception taken. He answered: "I was asked to get out." It has been held that charging a man with "crooked practices" on a race course is slanderous per se. ( Gideon v. Dwyer, 87 Hun, 246.) The purpose of the question was to affect the defendant's credibility, and the tendency of it and of the answer was to prejudice him before the jury. It is well settled in this State that it is not competent to ask a witness on his cross examination, for the purpose of affecting his credibility, if he has been charged with crimes or misdemeanors, or if he has been turned out of a social organization. ( Brown v. The People, 8 Hun, 562; affd., 72 N.Y. 571; West v. Lynch, 7 Daly, 245; Berner v. Mittnacht, 2 Sweeny, 582; Crapo v. People, 15 Hun, 269; affd., 76 N.Y. 288; Smith v. Mulford, 42 Hun, 347; Kober v. Miller, 38 id. 184; Hayward v. Sayer, 45 id. 595; Van Bokkelen v. Berdell, 130 N.Y. 141; Barker v. Savage, 1 Sweeny, 288; Greaton v. Smith, 1 Daly, 380; affd., sub nom. Greton v. Smith, 33 N.Y. 245; Ryan v. People, 79 id. 593.)
A witness may be asked for the purpose of affecting his credibility in respect to his own acts, but not in respect to the acts and declarations of others tending to discredit him.
Without considering the other questions presented on the briefs, we think that, for this error, the judgment and order should be reversed and a new trial granted, with costs to abide the event.
All concurred.
Judgment and order reversed and a new trial ordered, with costs to abide the event.