Mack v. Austin

The note in suit was made payable to the plaintiff as attorney. He received it in settlement of a claim against this defendant, owned by Messrs. Dowling and Worms, and held it for their account.

His fees for his services in that particular case, amounting to 50 per cent., he had 'already received in cash.

Under the denials and separate defense set forth in the answer, the defendant sought to prove that he was not indebted to the plaintiff upon the noté, and that he had discharged his liability thereon to the plaintiff’s clients, Messrs. Dowling and Worms.

For this purpose he called the plaintiff (an adverse witness) as his witness, and, upon the conclusion of his examination, endeavored to contradict him by the testimony of the witnesses Dow-ling and Austin.

This the learned trial justice refused him permission to do, upon the ground that the defendant could not contradict his own witness.

The defendant should have been allowed to make such proof, upon the ground that the witness Mack was an adverse witness, and the defendant had a right to contradict him, in order to give material evidence upon an issue in the case. Becker v. Koch, 104 N. Y. 395.

Peckham, J., in this case, at page 401, after describing a person as an adverse witness, says: “ With regard to such witnesses it is *199well settled that all the rules applicable to the examination of other witnesses do not in their strictness apply. An adverse witness may be cross-examined, and leading questions may be put to him by the party calling him, for the very sensible and sufficient reason that he is adverse.”

Again at page 403, the learned judge says: “ But all the cases concur in the right of a party to contradict his own witness by calling witnesses to prove a fact (material to the issue) to be otherwise than as sworn to by him, even when the necessary effect is to impeach him.”

It follows that the judgment appealed from should be reversed, and a new trial granted, with costs to the appellant to '¡abide the event.

Fitzsimons, Ch. J., concurs.

Judgment reversed and new trial granted, with costs to appellant to abide event.