Opinion
Argued January 21, 1901
Decided February 1, 1901
Charles F. Brown and Henry A. Robinson for appellant.
Thomas P. Wickes for respondent.
We find no reversible error in the record except the following: On the trial Giblin gave evidence in corroboration of the plaintiff's theory of the accident. He further testified that one Julian, who was in the employ of the defendant and investigated the facts of the case in its behalf, attempted to hire him to leave the state until after the trial. Julian emphatically denied this, but stated that while working on the case he sent for Giblin, had an interview with him, and upon his suggestion appointed a time and place for another meeting. The plaintiff attempted by the cross-examination of Julian to show that as a representative of the defendant he had offered Giblin $450 to leave the state; that Giblin had refused to take it; that Julian had then left the room for the purpose of obtaining authority to give Giblin more money, and being unable to arrange it, had made an appointment to meet him at another place late in the evening when he would be better prepared to "talk business." On both the direct and cross-examination Julian admitted appointing another interview and stated that he had "an object in view" in so doing. On the redirect examination he was asked by the defendant to state what his object was, but the objection of the plaintiff to the question as immaterial, irrelevant and incompetent was sustained, and an exception was taken.
This was an erroneous ruling. The testimony of Giblin tended to show that the defendant did not have an honest and just defense because it had attempted through Julian to bribe an important witness for the plaintiff. After both parties had shown by Julian that he had arranged for a second interview with Giblin, and that he had an object in so doing, the defendant was entitled to have the jury know what that object was, as it might tend to remove a serious imputation upon his credibility and character. It was important for them to consider his explanation as to why he wanted to see Giblin a second time, for it might have rebutted the inference to be drawn from the cross-examination. ( People v. Buchanan, 145 N.Y. 1, 24; People v. Barone, 161 N.Y. 451, 471.)
The exclusion of Julian's explanation of very damaging evidence is presumed to have resulted in such injury to the defendant as to require a reversal of the judgments below and a new trial, which is ordered accordingly, with costs to abide event.
After a witness has been examined and cross-examined the party calling him may not, as matter of right, re-examine him except as to matters drawn out, in the first instance, on the cross-examination, although the trial court may, in its discretion, allow him to do so. The door was not opened by the plaintiff in his cross-examination of the witness Julian, for the fact that he had "an object in view" in securing a second interview with Giblin was distinctly sworn to upon the examination in chief. The counsel for the defendant did not see fit to then ask him what his object was, and as the cross-examination brought out nothing new upon the subject it was within the sound discretion of the trial judge to allow, or to refuse to allow him to reopen the subject and ask on the redirect a question which he could have asked on the direct. With such an exercise of discretion by the Supreme Court at the Trial Term, after an affirmance thereof by the Appellate Division, this court has no power to interfere, as its jurisdiction is confined, in civil cases, to the review of questions of law. ( De Camp v. Thomson, 159 N.Y. 444, 449; Reilley v. Delaware Hudson Canal Co., 102 N.Y. 383; Caldwell v. New Jersey Steamboat Co., 47 N.Y. 282.)
I think the judgment is right and I vote to affirm it.
PARKER, Ch. J., GRAY, BARTLETT, MARTIN, CULLEN and WERNER, JJ., concur for reversal; VANN, J., reads for affirmance.
Judgment reversed, etc.