Brink v. . Stratton

*151 Martin, J. This action was to recover upon, a joint and several promissory note made by the defendants Stratton, Brown, and the firm of Corey & Co., of which Corey is surviving partner. It was payable to the plaintiff or his order. The defendants Stratton and Brown answered the complaint, and, among other defenses, alleged that the note in suit had been paid by the defendant Horace W. Corey or the firm of Corey & Co. The defendants’ evidence was to the effect that it had been paid by giving another note made by Corey & Co. alone which was discounted at a bank, renewed from time to time, and ultimately taken up and paid by the plaintiff. That it was received in payment by the plaintiff was denied by him, and that issue was submitted to the jury which found a verdict in his favor. The judgment entered upon the verdict was unanimously affirmed by the Appellate Division, so that the only questions which are presented upon this appeal arise either upon rulings rejecting or admitting evidence, or, upon exceptions to the charge of the trial court. The first error alleged by the appellants is the refusal of the court to permit the defendant Corey to testify as to the relations between himself and three witnesses, Stivers, Boyd and Wilbur, who were called on the trial to impeach his character for truth and veracity. As to the witness Stivers he was asked : “ While you were publishing a paper and he was publishing one were you good friends ? [Objected to as improper. Objection sustained. Defendants except.] ” As to the witness Boyd he was asked : “Was Mr. Boyd opposing you and you opposing Mr. Boyd for a number of years in your papers ? [Objected to as improper. Objection sustained. Defendants except.] Q. Each one attacking the other through the paper ? [Same objection, ruling and exception.] ” As to the witness Wilbur he was asked : “ What have been the relations between you and Mr. Wilbur ? [Objected to. Objection sustained. Defendants except.] Q. Was Mr. Arthur (Wilbur) at one time superintendent of schools ? A. He was. Q. Did your paper attack him? [Objected to. Objection sustained. Exception.] Q. I will ask you whether or not by *152 reason of the position of the ‘Forum’ against Mr. Wilbur, whether or not he was defeated as superintendent of the schools % [Objected to. Objection sustained. Exception.] ” That it was competent to prove the hostility of any or all of these witnesses towards the defendants or either of them by their cross-examination or by other testimony; that it was not necessary that the witness should be first examined as to his hostility before calling other witnesses, and that the examination of other witnesses is not limited to contradicting him in case he denies hostility, is well established by the decisions in this State. (Stacks v. People, 5 Denio, 106; People v. Brooks, 131 N. Y. 321; Garnsey v. Rhodes, 138 N. Y. 461, 467; People v. Webster, 139 N. Y. 73, 85; Lamb v. Lamb, 146 N. Y. 317.) In People v. Brooks it was held that the hostility of a witness towards a party against whom he is called may be proved by any competent evidence, either by cros's-examination of the witness or by the testimony of other witnesses; and that it is not necessary that the witness should first be examined as to his hostility before calling other witnesses, and the examination of other witnesses is not limited to contradicting him in case he denies any hostility. The extent, however, to which an examination may go for the purpose of proving the hostility of a witness must be, to some extent, at least, within the discretion of the trial judge. It should be direct and positive, and not very remote and uncertain, for the reason that the trial of the main issue in the case cannot be properly suspended to make out a case of hostile feeling by mere circumstantial evidence from which such hostility or malice may, or may not, be inferred. (Schultz v. Third Ave. R. R. Co., 89 N. Y. 242.) The decision i;i the Brooks case was followed in Garnsey v. Rhodes, People v. Webster and Lamb v. Lamb. In the Garnsey case a witness was asked whether there had been any disagreement between him and the plaintiff’s architects, between whom and the plaintiff a conspiracy was alleged. The evidence was objected to and excluded. This was held error and the court there said: “The object of the defense *153 was to charge the plaintiff with the consequences of a conspiracy between him and the architects, and it was, therefore, quite as material and important for the plaintiff to show that the witness by whom it was sought to establish the unlawful combination was hostile to one of the parties to it as it would have been to have shown hostility on his part towards the plaintiff himself. The admission or rejection of the evidence was not discretionary with the trial court.” “ It was not there (in People v. Brooks) held, as the counsel for the defendant seems to suggest, that it was in the discretion of the court, whether such questions should be allowed. All that was said upon the point was that the extent to which such an examination may go must be in some measure within the discretion of the trial judge. This must be so or else it ' might become interminable. But here the whole inquiry was ruled out. Even general questions were disallowed, and, as it must be assumed, for the purposes of this appeal, that if answered, the responses would have shown bias, the plaintiff may have been prejudiced by the exclusion of the evidence.” • If Corey is to be regarded as a party to this action, then clearly within the doctrine of that case the evidence offered by the defendants as to the relations between Corey and the witnesses called was admissible. It will be remembered that the witness was asked as to Stivers whether he and Stivers were good friends while publishing opposition papers. As to Boyd the inquiry was if they were opposing each other for a number of years in their papers, and as to Wilbur he was asked what had been the relations between them. All these questions were objected to as improper and the objection was sustained. Corey was named as defendant in the summons and complaint, but did not appear either in person or by attorney. He was, however, called as a witness by the defendants and gave material testimony upon the trial. The three witnesses mentioned were called to impeach his character for truth and veracity and testified that it was bad. Corey was then recalled and the proof as to the hostility of those witnesses to him was offered and excluded. Thus the ques *154 tion presented is whether the’ defendants were entitled to prove the relations between those witnesses and Corey as affecting their evidence as to his general character. We think they were. The question of his character was thus placed in direct issue. To that issue the evidence rejected was plainly directed, and the proof offered was admissible within the principle of the cases already cited, especially the cases of Starks v. People (5 Denio, 106), where it was- held that a party has a right to impeach a witness for his adversary, though the testimony of such witness related solely to the general character of another witness, and Gcrrnsey v. Rhodes, where the hostility which was sought to be proved was between the architects employed by the plaintiff and the principal witness for the defense. In this case the direct purpose of the evidence was to show that the witnesses who had testified to the bad character of Corey were hostile to him, the party against whom they had testified, and, hence, their evidence was not entitled to the credit it otherwise would have been and was, we think, plainly admissible. The next exception urged by the appellants is to the rulings of the court rejecting the evidence of the defendant Corey as to whether' he was financially responsible at the time the note which was put in the bank was delivered to the plaintiff. The issue was whether the note in suit had been paid by the delivery and acceptance of a note made by Corey & Co. That question in the case depended upon the direct evidence of the parties, and even if the defendant Corey was financially responsible, it is hardly evidence that the plaintiff would have surrendered a note upon which there were two other makers who were responsible, even if the defendant Corey was. We think this exception is insufficient to justify an interference with the judgment. The only remaining exceptions that need be considered are whether the court properly overruled the defendants’ objection to the plaintiff’s question whether the witness Corey believed in the existence of a Supreme Being who will punish false swearing, and to the charge of the court upon that *155 evidence. The question was objected to as improper, immaterial and irrelevant. The objection was overruled and the defendants excepted. The answer ivas: “ I do not know anything about it I am sure. N * * I will reply that I am an agnostic. I have no belief on that subject at all. I do not know anything about it.” The court .in charging the jury said: “ I't is for you to say how far you are to attach credibility to his (Corey’s) statements, how far his testimony is impeached as to what he has said here in regard to his religious beliefs.” This charge was excepted to by the defendants. That question is not an open one in this court. In People v. Most (128 N. Y. 108) it was directly involved and distinctly decided. One of the points made by the appellant’s counsel in this court was that “ The court erred in permitting the district attorney to interrogate each witness for the defense as to his religious belief, and in not stopping the district attorney in his summing up to the jury when he said that the jury should not believe the defendant and his witnesses because some of them testified that they did not believe in the Supreme Being.” At the threshold of his opinion in that case Judge Andrews stated that “ But three of the questions presented on the brief of the appellant’s counsel can be considered on this appeal. One of these questions is raised by the exception to the denial by the trial judge of the motion of the counsel for the defendant, made at the conclusion of the evidence on the part of the People, for an instruction to the jury to acquit the defendant' on the ground that the evidence was legally insufficient to justify a conviction. An exception was taken to a question put to a witness by the defendant on cross-examination by the prosecuting officer and which was allowed by the court, as to his belief in a Supreme Being. A third exception was taken to evidence offered by the prosecution and admitted, that the persons present at the meeting at Kramer’s Hall on the evening of November 12, 1887, were anarchists.” After discussing the first and third questions the court held that the evidence was sufficient to bring the case within the defi *156 nition of the statute, and that the proof that the persons present at tlie meeting at Kramer’ Hall were anarchists, was properly admitted. As to the second exception, which was to the question as .to the witness’ belief in a Supreme Being, the court said : “ The exception to the question put to the witness on cross-examination as to his belief in a Supreme Being is frivolous.” Thus it is perfectly manifest that the question whether it was competent to interrogate a witness as to his belief in a Supreme Being was directly involved and squarely decided by this court in that case. It is also manifest that if a contrary view had been taken upon that question, which was certainly presented, it would have required a reversal of the judgment, and, as the judgment was unanimously affirmed, it is plain that the question was passed upon in that case. Therefore, unless our decision in that case is to be overruled, the judgment in this case cannot be reversed upon that ground. We are, however, of the opinion that the court erred in rejecting the evidence of the witness Corey as to the hostility of the impeaching witnesses, and for that error alone the judgment should be reversed.