Sitterly v. Gregg, 90 N. Y., 686. SITTERLY v. GREGG. New York Court of Appeals, 1882. [Reported in 90 N. Y., 686.] The credibility of a witness may be assailed by a contradiction of testimony drawn out from him on cross-examination as to a material point. Where a witness on cross-examination had denied that the party on whose behalf he was called was present at a transaction, his presence at which would have tended to show acquiescence in or admission of a material fact, held, that the cross-examining party was not bound by the answer, but could give evidence to the contrary. The plaintiff sued on notes, one of which was thirteen years old, and defendant contended that they had been paid. There had been other loans and notes between the parties. The contention on the merits was as to whether a note of $300 was paid before the time of an interview had by plaintiff with defendant Andrew and his brothers, James and John. [Reported in 22 Hun, 258.] James was called as a witness for defendant, and testified that the note in question had been paid some ten years ago; but was not surrendered, plaintiff saying she could not then find it. He also testified that at an interview for the purpose of accounting, at a time long after the alleged payment, he, James, cast the interest on the note in question with the others. On cross-examination he testified that Andrew, the defendant, was not present at that interview. The main question on appeal was whether Andrew's presence was a collateral fact, as to which the cross-examining party was bound by the answer, or whether it was material and could be contradicted. FINCH, J. [on this point said]: The plaintiff, in her recital of the interview and accounting at her mother's, stated that his (defendant's) brothers, James and John, were present, and that James did the figuring at her request. He was called as a witness for the defendant, and testified that the $300 note was actually paid within three or four years after it was given by the defendant, and the note was not at the time surrendered, Sitterly v. Gregg, 90 N. Y., 686. because the plaintiff said she could not find it. On cross-examination his attention was drawn to the occurrence at his mother's, the day after the meeting at O'Neill's. If the plaintiff's version of that transaction was true, it tended to contradict strongly the story of the witness, that he saw Andrew previously pay the note, for it is inconceivable, if such payment was in reality made, that James would cast the interest on all three notes in the presence of Andrew, the latter taking part in the transaction, and all parties tacitly conceding, and no one disputing the validity of the $300 note as an outstanding debt and element of the computation. Under the cross-examination, directed to this occurrence, James admitted that he met the plaintiff at his mother's on the day specified; that the note of $300 was referred to, and he figured the interest on it at plaintiff's request; and that he figured on several amounts for her. So far he corroborated her statement, and would have completed a substantial contradiction of his own evidence in chief but for a denial which followed. He said that the defendant was not present on that occasion. He was then asked if he had not said that Andrew was so present to O'Neill, and answered in the negative. O'Neill was subsequently called and permitted to testify that the witness did so state, under the defendant's objection that the fact inquired about was collateral, and the evidence incompetent. We think the fact inquired about was not a collateral fact within the rule, but one material to the issue of payment, and, if true, tended, when taken in connection with the admissions of the witness, to contradict his evidence in chief, for it is impossible to believe, if James and Andrew both knew the note to have been paid, that the former would have figured the interest on it, and the latter taken part in the transaction, but neither uttering protest or dissent. All this would have followed and been unanswerable, if Andrew was admitted to have been present, unless some further modifying proof was given. While the latter also denied being present, he confesses that the appointment was made the day before at his request. The collision, therefore, was upon an important and material point, and the fact sought to be drawn from James bore directly upon the issue of payment, and tended to contradict him upon a material matter, and where that is the Matter of Will of Snelling, 136 N. Y., 515. case the credibility of the witness may be assailed by showing a contrary statement made elsewhere. (Carpenter v. Ward, 30 N. Y., 243; Schell v. Plumb, 55 id., 592; Patchin v. Astor Mut. Ins. Co., 13 id., 268.) The cross-examination of the witness was not as to immaterial matter. It was upon an occurrence vital to the issue of payment, and to the testimony upon that issue which the witness had given on his direct examination. We think, therefore, the evidence of O'Neill was competent, and no error was committed in its admission. All the judges concurred, except TRACY, J., absent. NOTE.-In Badger v. Badger, 88 N. Y., 546; rev'g 13 Weekly Dig., 35, an action for dower, the issue being as to the marriage of plaintiff and decedent, sought to be proved by evidence of cohabitation and repute, in opposition to proof that during the same period, the decedent was known among his friends and relatives as a bachelor, a witness for plaintiff testified to a conversation with decedent at the house of a sister of the latter where he said he was a married man, but it would not do to let the women know it. Upon cross-examination the witness denied that at another time, the decedent, in presence of his sister, said he was a bachelor. The defendant afterward called the sister. Held, that as against a general objection, it was proper to allow her to testify to the latter statement of the deceased, it being expressly received for the purpose of contradicting the plaintiff's witness, and not as a declaration of deceased. The declaration was not immaterial within the rule that an answer on such matter is conclusive (Dist'g Van Tuyl v. Van Tuyl, 57 Barb., 241; Matter of Taylor, 9 Paige, 614). MATTER OF WILL OF SNELLING. New York Court of Appeals, 1893. [Reported in 136 N. Y., 515.] If an objection is so stated that it may fairly be assumed that the precise ground was understood, though indirectly or obscurely expressed, it may be held on appeal sufficient in form. Bias of a witness is material; and counsel cross-examining a witness as to statements or acts showing bias is not concluded by the answers of the witness, but after foundation laid* may contradict the testimony by other witnesses. Application for the probate of the will of Mary Snelling, * That there is no necessity of laying foundation, see People v. Brooks, p. 711 of this vol. Matter of Will of Snelling, 136 N. Y., 515. contested by her nephews and nieces on the ground of incapacity and undue influence. On the hearing, two witnesses were produced by the contestants for the purpose of sustaining the objections made to the probate of the will, who testified at great length to various acts, conversations and transactions of the testatrix, tending to establish undue influence and incapacity. This testimony extended over some years prior to the execution of the will, and much of it had no bearing upon the issues, as may well be inferred from the fact that it covers over fifty printed pages in the record. The proponents then called two physicians, who both testified that they had read the whole of the testimony of the two witnesses referred to above, giving the names of these witnesses, and to each of them in succession the following question was propounded: "Assuming their testimony to be true, and basing your opinion upon such testimony, what would you say as to the mental condition of Mary Snelling, say in June, 1890?" Objected to as irrelevant and immaterial, and that the witness is debarred from answering the question as laid down by the Court of Appeals in the case of People v. McElvaine.* Objection overruled and exception taken. A. "I should say she was perfectly sane." The Surrogate of Suffolk admitted the will to probate. The Supreme Court at General Term affirmed the decree without opinion on this point. The Court of Appeals reversed the judgment. O'BRIEN, J. [after stating facts.] This question [the one above given] was objected to by the counsel for the contestants; and while the form in which the objection was made is quite inartistic, there can be no doubt as to what was intended, and we think was sufficient to challenge the competency of the testimony sought to be elicited. The surrogate overruled the objection, and an exception was taken. The witness in each case then answered: "I should say she was perfectly sane." It is needless to enter upon any reasoning or discussion to show that this question was * Reported in 121 N. Y., 250. The ruling there was against an hypothetical question referring to evidence as heard by the witness. Matter of Will of Snelling, 136 N. Y., 515. improper, as this court has more than once condemned this method of eliciting opinions from experts. (Reynolds v. Robinson, 64 N. Y. 589, 595; People v. McElvaine, 121 id. 250; Link . Sheldon, 136 N. Y. 1.) And it would be difficult to imagine a plainer breach of the rule than is presented by the question propounded to the witness in this case. The principle is not changed by the circumstance that all the testimony embraced within the sweeping terms of the question was before the court, or by the fact that the mass of testimony upon which the opinion was based came from witnesses of the opposite party. The necessity of a specific question, at the time of the examination of the witnesses, covering all the facts, or assumed facts, upon which the opinion of the expert is required, is as apparent in such a case as in any other. One of the subscribing witnesses to the execution of the will was a neighbor of the persons, husband and wife, in whose favor the will was made, and she attended at the time the will was executed, at the request of the wife, who was one of the beneficiaries under the will. About the time of the hearing upon the contest before the surrogate this subscribing witness was visited by a woman who, under an assumed name and without disclosing her real purpose, had been procured by the contestants or their counsel to elicit admissions from her for use upon the trial. The subscribing witness, after having testified to what took place at the execution of the will, and that the testatrix was at the time apparently rational, was subjected to a long cross-examination with reference to the interview with the visitor above referred to, for the purpose of laying a foundation for impeaching her testimony. Many of the questions put to the witness in the course of this exceedingly prolix and discursive examination were properly excluded by the surrogate. She was asked, however, in substance, if Mrs. Cook, who was one of the beneficiaries under the will and interested in its probate, and who had procured her to attend as a witness to the will, had not promised her money or some reward in the case, and she answered the question in the negative. Subsequently the woman who sought the interview in the interest of the contestants, was called as an impeaching witness, and in various forms was asked |