Henry Novogrucky, an Infant, by Wolf Novogrucky, His Guardian ad Litem, Appellant, v. The Brooklyn Heights Railroad Company, Respondent

Henry Novogrucky, an Infant, by Wolf Novogrucky, His Guardian ad Litem, Appellant, v. The Brooklyn Heights Railroad Company, Respondent. Second Department, April 24, 1908. Evidence — impeachment of witness by his affidavit —• practice. Where the defendant’s witness has testified that he was asked by the plaintiff to give perjured testimony as to the manner in which the plaintiff received Ilia injuries and has denied that he had sworn to a statement as to the manner in which the injuries occurred, the sworn statement is admissible to contradict him. It is unnecessary that the statement he proved by the testimony of the witness himself or that he he cross-examined and asked if the statements in it were true. The custom of cross-examining a witness not a party as to whether he signed a paper or made oral declarations is merely for the purpose ol giving notice to the adverse party, so that he may keep the witness in court to contradict the statements if they be subsequently put in evidence. If this be not done, notice must be given in some other way, otherwise if the witness be gone the evidence will not be allowed. Where the witness is in court, there is no occasion to invoke the rule. Appeal by the plaintiff, Henry Hovogrucky, an infant, by Wolf Hovogrncky, bis guardian ad litem, from an order of tbe Supreme Court, made at tbe Kings County Trial Term and entered, in tbe office of tbe clerk of tbe county of Kings on tbe 18th. day of February, 1907, denying tbe plaintiff’s motion for a new trial made upon the minutes, and also from "an order entered in said clerk’s office on tbe 18tk day of February, 1907, denying the plaintiff’s motion for a new trial upon the ground of newly-discovered evidence, with notice of an intention to bring up for review a judgment in favor of the defendant entered in said clerk’s office on the 20th day of December, 1905. The action was for damages for injuries received on one of the defendant’s street cars. Tbe plaintiff testified that be got on the running board to sell a newspaper and that the conductor seized him and threw him off, and tbe car wheel cut bis leg; and was corroborated by other witnesses. Robert Stewart [R. G. Barclay with him on tbe brief], for tbe appellant. D. A. Marsh [George D. Yeomans with him on the brief], for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The defendant called a witness who testified that the plaintiff’s father, a stranger to him, accosted him in the street and asked him if he would take a walk to his house as he wished to see him on a little business; that he went with him io his house and there met the plaintiff also; that the plaintiff explained to him that he had a case against the defendant and asked the witness to testify for him; that he told them that it would be perjury for him to do so and asked if they understood that, to which the plaintiff said yes; that he told the plaintiff it would be a state’s prison offense, and he answered that he did not care, that he wanted to win the case; that he told them he would not make a fit witness as he did not see anything; that the plaintiff then asked him if he could get two other fellows, and that he said he could. On cross-examination counsel for the plaintiff presented to the witness a paper and asked him if he did not sign and swear to it, but he denied it. In rebuttal it was proved by the testimony of an associate of the plaintiff’s counsel that the witness had cometo him at'the plaintiff’s house and had there signed the paper and sworn to it before him, after it had been drawn up from his statements and read to him. The learned trial ¿Tudge excluded the paper, except the signature of the witness to it, on it then being offered in evidence by the counsel for the plaintiff, on the objection that it was incompetent. The exception to this ruling was good. The paper is an affidavit by the witness that he was standing nearby when the plaintiff was hurt and saw the conductor take hold of him and shove him off the running board of the car; that a few weeks before the trial he met the plaintiff and asked him if he was not the young fellow wdio was hurt on the cars; that the plaintiff told him he had a case in court and asked him if he would be a witness, and that he said he would. It is always competent to show that a witness made statements, oral or written, either before or after he testified, which are inconsistent with his testimony. It is said that the affidavit was excluded because it was not proved by.the testimony of the witness himself to be his affidavit, and because he was not cross-examined about it and asked if the statements in it were true — a method followed by some counsel under the mistaken notion that it is required. It is true that in Romertze v. East River National Bank (49 N. Y. 577), it was proved by the evidence of the witness himself that he signed the paper, and it was held that it Avas not necessary for the plaintiff’s counsel to then examine him about it and put it in evidence, but that the regular course was to reserve it until his turn came to put in evidence and then put it in with his other evidence, leaving the other side to examine the Avitness-in explanation of it if any could be given. There ivas no intimation, even, that the signature to the paper had to be proved by the testimony of the witness himself, or that lie had to be cross-examined about the contents, in order to make the paper competent evidence. Bad law may be easily made by taking the converse of a legal proposition for law. It could be proved by any one or in any way and then put in evidence. Evidence, oral or written, of inconsistent statements of a Avitness, to impeach him or affect his credibility, is, like evidence of statements by the Avitness, or otherwise, to sIioav bias or hostility in him, material and relevant,, and not on a collateral matter, and the rules in respect of its admissibility should be distinguished from the rules in respect of the admissibility of such collateral evidence. Such inconsistent statements may be proved orally by Avitnesses called for that purpose, or by» Avritten declarations of the witness being discredited® It has long been the custom and the rule in the courts, however, to ask the witness on cross-examination if he be not a party, Avlietber he signed the jiajter or made the oral declarations, so that the side calling him may have notice of AArliat is coming, and require him to remain in court tc be called to explain or contradict such statements if they should subsequently be put in evidence. If this be not done, notice must be given in some other way, for if no notice be given and the Avitness has gone the evidence will not be allowed. If, hoivever, he be in court when the evidence is offered, there is no occasion to invoke the rule (1 Gr. Ev. [15th ed.] sec. 264, and especially the notes). The order should be reversed. Woodward, Jenks, Hooker and Miller, JJ., concurred. Order denying the motion on the minutes for a new trial reversed and new trial granted, costs to abide the event. Appeal from order denying motion on the ground of newly-dis covered evidence dismissed, to be renewed if necessary. Sic, See §§468. 46S.— [Rep.