#### Julius Leszynsky, Resp’t, *v.*Samuel H. Leszynsky, App’lt.

*(Supreme Court, General Term, First Department,*

*Filed July 9, 1889.)*

1. Jury—When finding conclusive.

Where the testimony in a case is conflicting, and the case is left to the jury in a fair and impartial charge to which no exception is taken, their finding upon the facts must stand unless some error in law was committed by the court in its rulings upon evidence.

2. Evidence—Witness—How may be impeached.

In an action 1o recover a sum of money loaned by plaintiff to defendant, the latter introduced evidence tending to show that while he had received considerable money from plaintiff, it was not as a loan, but as his share in the profits derived from a mining scheme. A witness called in his behalf corroborated this evidence in regard to the money derived from the mining scheme. *Held,*that it was permissible for plaintiff, in order to discredit the witness, to prove that he had been informed otherwise, and that he knew that plaintiff had money with defendant.

Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, and from an order denying the defendant’s motion for a new trial.

*Richard S. Newcombe,*for app’lt; *Mr.*Kingsbury, for resp’t.

Bartlett, J.

In the argument of this appeal the learned counsel for the defendant has relied chiefly upon the proposition that the verdict is so clearly against the weight of evidence as to require the court to grant a new trial. The action is brought to recover $10,000 alleged to have been loaned by the plaintiff to the defendant, who is his cousin.' The plaintiff not only testifies to the making of the loan, as a matter of fact, but he produces a statement in writing, signed by the defendant, in which the defendant acknowledges having received from the plaintiff on *769November 1, 1883, $10,000 on deposit. The defendant denies that any loan was made, and explains the certificate of deposit by saying in substance that he executed it in order to enable the plaintiff to exhibit it to some parties with whom he was carryin'g on business negotiations, in order to convince them that he was a man of means. The defendant also introduced evidence tending to show that while he had received a considerable sum of money from the plaintiff, it was not as a loan, but as his share in the profits derived from a mining scheme, in which the parties to this action were jointly interested. The conflict of evidence in the case was direct and- positive, and of such a character as to lead the learned judge, who presided at the trial, to intimate that there must be perjury on one side or the other. We have gone carefully over the testimony, however, and are unable to say that the proof so greatly preponderates against the plaintiff as to justify us in setting aside the verdict on that ground. The case was one for the jury to pass upon, and was left to the jury in a most fair and impartial charge, to which no exception was taken, and their finding upon the facts must stand, unless some error of law was committed by the court in its rulings upon evidence.

The only error alleged in behalf of the appellant, relates to certain testimony given by the plaintiff in rebuttal. Mr. Morris Goodhart, a lawyer, had testified in behalf of the defense to certain statements, which he said had been made by the plaintiff, to the effect that the defendant was interested with him to the extent of one-half in the proceeds of certain mining ventures.

On cross-examination, the counsel for the plaintiff sought to show that on another occasion when Mr. Goodhart was present, the plaintiff had been examined as a surety, and had testified that he then had at least $8,000 in the defendant’s hands. Mr. Goodhart, however, had no recollection of any such occurrence, or of any such testimony having been given by the plaintiff in his presence. When the plaintiff was put on the stand in rebuttal, he was examined with reference to what had occurred in Mr. G-oodhart’s presence on the occasion of his own examination as a surety, to which Mr. Goodhart’s attention had been called. He testified, in substance, that he did make the deposition, containing the statement that the defendant had $8,000 of his money, in Mr. Goodhart’s presence. He was then asked whether Mr. Goodhart did not say that he knew about it, and it was all right. To this question objection was made, on the ground that no such question had been put to Mr. Goodhart. The objection having been overruled and an exception taken, the plaintiff answered in the affirmative.

The general import of Mr. Goodhart’s testimony was, that he understood from the parties to the action, at a time when he was acting for them professionally, that they *770were to divide the money realized from the mining scheme. To discredit him upon this point, it was permissible for the plaintiff to prove that the witness had been informed otherwise, and had acknowledged that he knew the plaintiff had money with the defendant. This ought not to have been allowed, however, without first calling Mr. Good-hart’s attention to the language he was said to have used; but the omission to lay a proper foundation for the question in this respect was not of any real importance, since Mr. Goodhart had disclaimed any recollection of having been present at all when the plaintiff was examined as a surety. Hence, whatever error there may have been in admitting the statement of the plaintiff as to this conversation, it was harmless to the defendant; and the correctness of this view is confirmed by the statement which we find in the brief of the learned counsel for the appellant, to the effect that the remarks attributed by the plaintiff to Mr. Goodhart on that occasion “are capable of a construction equally consonant with the defendant’s story.” If so, it is only fair to presume that the jury gave them that construction if they were fairly entitled to it.

The judgment and order appealed from should be affirmed, with costs.

Van Brunt, Ch. J., concurs.