CHAPTER V. EXAMINATION OF WITNESSES AND GEN

ERAL PROVISIONS.

SECTION 210. (Kissam vs. Forrest, 25 Wend., 651.)

SECTION 212. (Williams vs. Sargeant, 46 N. Y., 481.)

SECTIONS 213 and 214. The rule in these sections is established by the case of Driggs vs. Smith, (36 Superior Ct. R., 283,) affirmed by the Court of Appeals. See also (Howard vs. McDonough, 77 N. Y., 592, and Wise vs. Phenix Fire Ins. Co., 107 N. Y., 637.) There are no decisions precisely upon the point that the witness may refer to any other material thing than a writing to refresh his recollection, but such has been the usual practice, and it seems to be sustained in the case of (Carter vs. Bowe, 41 Hun., 516, 519.) See also (Halsey vs. Sinsebaugh, 15 N. Y., 485; Guy vs. Mead, 22 N. Y., 462; Peck vs. Valentine, 94 N. Y., 570; Peck vs. Lake, 3 Lans., 136.)

SECTION 215. (People vs. Mather, 4 Wend., 229; Black vs. C. & A. R. R. Co., 45 Barb., 40.)

SECTION 216. The rule as stated by the leading case on the subject of this section is that as a general rule a party cannot introduce his case to the jury by cross-examining the witness of his adversary. It lies in the discretion of the trial judge. (Neill vs. Thorn, 88 N. Y., 270.) The rule in the section that if a party on cross-examination examines a witness as to other matters, the party is subject to the same rules as on the direct examination, is settled by (People ex rel vs. Oyer and Terminer of New York, 83 N. Y., 436.)

SECTION 217. This Section rests on the authority of People vs. Noelke, (94 N. Y., 137.) See (Stephen's Digest Art. 129, and Chase's note to that section.)

SECTION 218. As to the first sentence, see (Plato vs. Reynolds, 27 N. Y., 586.)

As to Subdivision 1, see (Code Civ. Pro., § 832, and People vs. Kelly, 35 Hun., 295.)

As to Subdivision 2, see (Stark vs. People, 5 Den., 106; Teets vs. Village of Middletown, 106 N. Y., 651.)

That he may be contradicted if he denies, see (Newton vs. Harris, 6 N. Y., 345.)

SECTION 219. The rule that a party producing a witness cannot impeach him by evidence that his general reputation is bad is undoubted in this state. (Pollock vs. Pollock, 71 N. Y., 137.) section makes one exception to that rule. There are no reported cases in this state in which a party has been permitted to attack the general reputation of a witness whom he has sworn, even though he has examined him upon a collateral question not involving the merits of the case. It is within the knowledge of the Commissioners that such a course has sometimes been permitted at trial terms, and it seems to the Commissioners that the exception contained in this section is proper. No good reason can be suggested why a party who is compelled to put his adversary or a hostile witness upon the stand for the purpose of proving some formal matter, such as the loss of a paper or the absence of a witness, should be, by the fact of having called such person, precluded from showing his general reputation, if that person should afterwards be called as a witness upon the merits of the action, by his adversary. The rule as stated in the section limits the right to impeach one's own witness to the sole case where he is necessarily called to prove a fact entirely collateral to the fact in issue, and as thus limited it is perfectly safe and will work well in practice. The rule has been adopted in England and in the state of Maine. See (Greenough vs. Eccles, 5 Com. B., 807, note, and cases there cited; Dennett vs. Dow, 5 Shipley, 19); see also (Wharton on Ev., § 500.) There has never been any question that a party may contradict his own witness by other evidence relevant to the issue even if the necessary effect is to impeach him collaterally. (Becker vs. Koch, 104 N. Y., 394.) The case last cited is also authority for the rule laid down in this section, that a party may ask his own witness whether he has not at other times made statements inconsistent with his present testimony. It has been held that where a party calls his adversary as a witness, he may show, for the purpose of contradicting him, that he has made contradictory statements at other times. (Crouse vs. Frothingham, 27 Hun., 123.)

SECTION 220. The authority for this section is found in the following cases: (Beard vs. Hale, 3 T. & C., 791; People vs. Mather, 4 Wend., 229; Johnson vs. People, 3 Hill, 178.)

SECTION 221. (Stape vs. People, 85 N. Y., 390; Hart vs. Hudson River Bridge Co., 84 N. Y., 56.)

As to contradictory statements contained in writings, see (People vs. Taylor, 43 Hun, 419; Romertze vs. East River National Bank, 49 N. Y., 577.)

SECTION 225. The object of this section is to require that a writing proved by a witness shall be put in evidence while the witness is on the stand, in order that without recalling him any explanation which he may be able to give may be obtained from him. It will be noticed that the section does not absolutely forbid putting the paper in evidence after the witness has retired from the stand, but leaves the question whether it may be then put in evidence to the discretion of the court.

SECTION 226. The authorities upon the right of a party to call a member of the court as a witness in the trial of an action are found in the case of (People vs. Dohring, 59 N. Y.. 374.) The rule in that case is, that if the judge who is called as a witness is absolutely essential to constitute the court, he cannot be sworn, but if his testimony is necessary, the trial must be suspended.

As to the proper practice when a juror is called as a witness, see (People vs. Dohring, above, and Wharton on Ev., §602.)

SECTIONS 227 and 228. The restrictions in these sections seem necessary to restrain a practice that has reflected none too favorably on the methods of the legal profession. The abuse of the privilege of cross-examination is so frequent that some safeguard seems required to protect a witness. It is believed and hoped that these two sections I will aid somewhat in this direction.

CORRECTIONS.

Note to §7, 4th line, for "94" read "391."

§ 13, for "Supervisors" read "Superior Court."

§ 15, 2d line, for "§3" read "§ 1."

§ 23, last line, for "443" read "444."

§ 33, for "Edwards" read "Elwood."

$ 41, for "26 N. Y." read "25 N. Y."

$ 51, for "Law" read "Lane;" for "613" read "615."

§ 60, omit "2" before 66 Wharton."

$71. Subd. 8, for "14" read "146."

§ 73, 2d line, for "38" read "58"

$ 73, 6th line, for "15" read 156"

§ 106, after "writings," 4th line, read "is admissible."

$106, the reference is to the page, not section.

§ 142, for "Adams" read "Abrams."

§ 147, Subd. 1, for "360" read "560."

§ 181 for "Biddel" read "Bedell."

$150, Subd. 3, 2d line, for "56" read "66"

§ 158, Subd. 3, for "937 " read "927."

§ 156, 2d line, for "41" read "241."

§ 169, last line but one, for "532" read "511."

$172, 4th line, for "Bushby" read "

Besley

$172, 7th line, for "Chem. Nat Bank" read "Clemens."

$182, 6th line, for "529" read "539."

§ 186, the reference is to "2 Pom. Eq. Jr."
$186, for "§ 189" read "§ 190."

"§ 213-14, 4th line, for "107" read "101."