Myer Foster, Respondent, v. Leon Tanenbaum, Appellant

Myer Foster, Respondent, v. Leon Tanenbaum, Appellant. Mctent of cross and re-direct examination—waiver of an objectionto fhe.strihingoui The extent of a cross-examination, and the method by which it should be conducted, are largely in the discretion of the trial court, and an appellate court has no right to review that discretion unless it has been abused. Where the opposing counsel- has, upon the trial of an action, drawn out upon cross-examination of the plaintiffs witness a statement which tends to affect ■ his credibility, the plaintiff may, upon the re-direct, put to the witness a question which tends to explain or limit an apparent contradiction. Upon the trial of an action the counsel for the plaintiff did not object to a question, but afterwards moved to strike it out. The court offered to allow the answer to stand, and give the plaintiff an exception to the question, but the counsel for the defendant objected to this, and the court then struck out the answer, notifying the defendant’s counsel that he could ask the question again and the court would admit it subject to exception. The counsel for the defendant excepted- to this ruling and refused to repeat the question. Meld, that as the defendant, had refused-to ask the question again he waived any objection to the course of the court in striking out the testimony as it stood.' Appeal by the defendant, Leon Tanenbaum, from a judgment of .the -Court of Common Pleas for the city and county of Hew York in favor óf the plaintiff, entered in the office of the clerk of said court on the 23d day of April; 1895, upon the verdict of a' jury, and also from an order entered in said clerk’s office on the 23d day of April, 1895, denying the defendant’s motion for a new trial made upon the minutes. - < This action was brought to recover commissions upon the sale of real estate. The complaint alleged that on or about the 22d day of March, 1893, the defendant agreed with the plaintiff: that if the plaintiff would inform him of certain real estate on Broadway, in the city of Hew York, that could be purchased, and the price of the same, and would procure a lessee for said premises when sold, he would pay the plaintiff one-half of any commissions that the defendant might earn upon- procuring a purchaser for the same, and upon renting the said premises to the lessee to be procured by the plaintiff as . aforesaid; that in pursuance of said- agreement the plaintiff informed the defendant that certain premises on the' corner' of Broadway and Thirty-first street, known' as “ The White Elephant,” and owned by one Eastman, could be purchased for $700,000, and that Jacob Yogel and Louis Yogel would take a lease of said premises for a term of ten years at about $65,000 a year; that thereafter the defendant procured one Wechsler to purchase the said property at the said price of $700,000, and a written agreement was entered into between the said Eastman and the said Wechsler for the purchase of the said property at the said sum; that thereafter the said Wechsler leased said premises to the said Jacob Yogel and Louis Yogel for the said term of ten years at $65,000 a year ; that the defendant received $12,400 as commission on the sale and rental of said premises, and that the plaintiff has demanded from the defendant the sum of $6,200, his one-half of the said commission, but that the defendant had refused to pay the same ; and the complaint demanded judgment for that sum. The answer denied the making of the agreement with the plaintiff as alleged in the complaint, and that the plaintiff' informed the defendant that the' premises in question owned by said Eastman, could be purchased for $700,000, and that Jacob Yogel and Louis Yogel would take a lease of said premises for the term of ten years at about $65,000 a year. The answer admitted that the defendant procured one Wechsler to purchase the said property at the price of $700,000, and that a written agreement for the purchase of said property was entered into between the said Eastman and Wechsler, but denied that thereafter the said Wechsler leased said premises to the said Jacob Yogel and Louis Yogel for the term of ten years at $65,000 a year. The answer also denied that the defendant had received $12,400 as commission on the sale and rental of said premises, and denied that the plaintiff had demanded from the defendant payment of the sum of $6,200 as one-half of the said alleged commission, and admitted that the plaintiff made a demand upon the defendant for the payment of half of the .commission earned by the defendant by reason of the sale by the defendant to Wechsler of said premises, and the leasing by said Wechsler to the said Jacob Yogel and Louis Yogel ■ of said premises, and admitted that the defendant had refused to pay any sum whatever to the plaintiff. Philip 8. Deem and Treadwell Cleveland, for the appellant B. F. Einstein, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: The question in this case was-one of. fact .submitted to. the jury upon a charge of the court to which the defendant raises no objection upon this appeal, and upon which the jury rendered a verdict for the plaintiff. The only grounds upon which w.e are asked to reverse this judgment are exceptions by the defendant to rulings upon questions of evidence. _ Most of these objections related to the limiting by the court of the cross-examination by defendant’s counsel of certain witnesses sWorn in behalf' of the plaintiff. We have examined these exceptions and do not think that any of them require us to reverse the judgment. The principal objections.and exceptions of the defendant are presented' upon the cross-examination of Jacob Yogel, a witness called by the plaintiff. He testified on the trial to an interview between the plaintiff and the defendant and himself , and his brother, Louis Yogel, when x the plaintiff introduced the witness and his • brother to the defendant, stating to him: “ Here are my parties ; I ’ am in this; now I have done my share; now I leave youwhereupon plaintiff left, and the witness and his brother remained and had a conversation with the defendant which resulted in the transaction being carried out, from which defendant realized the commission, half of which plaintiff seeks to recover. On cross-examination the witness was asked about the interview that he subsequently had with the defendant, and testified to his recollection as to that interview. He swore that he could not say what the conversation was exactly, but could' give the substance of it,'which he proceeded to do. This was an interview that took place after the transaction had been consummated; and it was stated by the defendant’s counsel that he intended to see if he could not bring out some conversation between the defendant and the witness to show that the witness had a hostile feeling towards the defendant. There was considerable conversation between the court and the defendant’s counsel, in which the court expressly stated to defendant’s counsel.: “ You may prove they had a difficulty, but antecedent to that, no.” The counsel for the defendant then asked several questions having relation to this interview about which the witness had testified upon the cross-examination, the questions being solely for the purpose of impeaching the witness and showing that he had a bias or prejudice against the defendant. It is well settled that the extent of a cross-examination, and the method by which it should be conducted, are largely in the discretion of the trial court, and a court on appeal has no right to review that discretion unless it has been abused. In this case the witness was asked the details of this conversation, and had given them so far as he remembered, at the request of the defendant’s counsel ; and we think it was within the discretion of the trial court to restrict the defendant’s counsel in his examination of the witness as to what took place at that interview. As before stated, the witness had stated his recollection of what took place at the interview in question, and after these questions were excluded, he was again allowed to answer the question as to whether he had a conversation with defendant in which the defendant charged the witness with having made misrepresentations at the time he entered into the lease, concerning the amount that he was worth, to which the witness stated he did not remember ever having had a conversation with him in regard to making a misstatement, or anything of the sort. And the witness also said that he did not remember that ■ the defendant said to him that he had made a misstatement concerning what he was worth. All of these questions that had been excluded appear to have been answered several times; and a consideration of the whole testimony, with 'the questions excluded, satisfies us that there was no abuse of the discretion vested in the court regulating the cross-examination of the witness. There was also an objection to a question asked Mr. Louis Vogel, another witness called on behalf of the plaintiff: “ Were you then in the market? ” This question was asked on redirect, examination by plaintiff’s counsel, and on cross-examination the witness had testified that a Mr. Strauss called on him on behalf of-the defendant, and that he (the witness) had told Strauss that he was not in the market. It was competent for the plaintiff on redirect examination to ask whether or not he was actually in the market for a place on Broadway between Thirty-third and Thirty-fourth streets at that time, and to explain why he had ma'de the statement to Strauss, the statement- having been drawn out on cross-examination by. defendant’s counsel for the purpose of affecting the credibility of the witness. • We do not think that the exception by the defendant to the striking out of cértain questions and answers by the court is available. Aiter tin,-, question was answered the counsel for the plaintiff moved to. strike it out, he not having objected to the question. The court ■offered to allow the plaintiff an exception to the question -and to allow the answer to stand, and to that counsel for the defendant ■objected, whereupon the court struck the answer out, notifying the ■defendant’s counsel that he could ask the question again and the ■court would admit it, it having been stricken out merely for,the purpose of allowing the plaintiff to make a timely objection to the ■question. To that the counsel for the defendant excepted and ¡refused to repeat the question. This was a mere matter of procedure upon the trial and was within the power of the court; and the ■defendant, having refused to ask the question again, waived any ■objection to striking the testimony out as it stood. The court expressly stated to the counsel for the defendant that he could ask the question again and that the -court would allow it; and the defendant, having refused to avail himself of this permission, cannot now urge his objection or exception to the striking out of the testimony. The testimony was not very material, and we cannot see that it would have had any effect upon the verdict if it had been allowed to stand. have examined the other objections to the testimony and. think that none of them is material or calls for any extended exami- - nation. No error has been called to our attention by the defendant of sufficient importance to justify us in reversing the judgment. We think, therefore, the judgment should be affirmed, with costs. . Van Brunt, P. J., Barrett, Bumsey and O’Brien, JJ., concurred. Judgment affirmed, with costs.