#### Philip Beeker *et al.,*Assignees, Resp’ts, *v.*Harry H. Koch Appl’t.

*(Court of Appeals,*

*Filed March*1, 1887.)

1. Practice — Appeal to court op appeals — Wiiat orders appealable —Code Civ. Pro., § 1301, 1316.

An order of the general term overruling exceptions ordered to be heard in the first instance at the general term and ordering that judgment on the verdict he entered, is not such an intermediate order as is referred to in section 1301, or 1316, Code Civ. Pro., and no appeal would lie from it to the court of appeals. But after the entry of judgment an appeal from such judgment brings up for review the exceptions taken by the appellant upon the trial.

2. Same — WitNess — Credibility.

In this case there was an issue of fraud in the making of an assignment by the assignor, and the defendant called the assignor as a witness who testified to facts concerning entries in the regular account books in his business which of themselves showed fraud, upon further examination, these facts and circumstances were explained so as to remove the fraud. This explanation was uncontradicted by other witnesses. The defendant then rested and a verdict in favor of plaintiff was thereupon directed by the court. *Held,*the whole evidence of the witness should have been submitted to the jury for them to pass upon its credibility. That they were at liberty to believe one portion and disbelieve another. *(Branch v. Levy,*49 *Super. Ot.*428, *overruled.*

3. Same — Contradiction oe one’s own witness — Impeachment oe.

The rule which prohibits a party fiom impeaching his own_ witness applies to three cases only, viz. (1) The calling of witnesses to impeach the general character of the witness; and (2) the proof of prior contradictory *689statements by him; and (3) a contradiction of tlie witness by another when tlie only effect is to impeach and not to give any material evidence upon any issue in the .case.

Appeal from an order of tbe superior court of the city of Buffalo general term denying defendants motion for a new trial upon exceptions heard at the general term in the first instance, and from a judgment on a verdict for plaintiff entered upon said order.

*Charles B.*Wheeler, for appl’t; *Baker*Schwartz, for resp’ts.

Peckham, J.

This action was brought by the plaintiffs, as assignees for the benefit of creditors of one Exstein, to recover from the defendant the possession of some personal property, amounting in value to about $4,000, or, in default thereof, to recover such value. The defendant justified the taking of the property by virtue of a writ of attachment issued to him as sheriff of Erie county in an action in which Victor and others were plaintiffs, and Exstein was defendant, and under which writ the sheriff had levied upon this property as belonging to the said Exstein. The assignment to plaintiffs was made on the seventeenth of October, 1883, and included the property in question. The attachment was, on the fourteenth of November, levied on the property, and after the plaintiffs in the attachment suit recovered judgment against Exstein, the property was sold on an execution issued thereunder to the defendant. The answer in this action set up these facts, and alleged that the assignment to the plaintiffs was made with the intent, on the part of Exstein, to hinder, delay, and defraud his creditors. The action came on for trial in the superior court of Buffalo, and, after the evidence was all in, the court directed a verdict for the plaintiffs for a return of the property to them, or for the value thereof, assessing the same at $3,800. A stay of proceedings was granted, and the defendant’s exceptions were ordered to be heard at the general term in the first instance.

The general term, after argument of such exceptions, overruled the same, and directed judgment for the plaintiffs on the verdict. Thereupon an order was entered which in form treated the defendant as having made a motion for a new trial on the exceptions ordered to be heard in the first instance at general term, and, after reciting such fact, continued thus : “ Ordered, that such motion be, and the same hereby is, denied, with costs; that the said exceptions be, and the same hereby are, overruled, and judgment for the plaintiffs on the verdict is hereby ordered.” Judgment in accordance with the order was subsequently entered. The defendant then appealed from the order above mentioned to this court, and also from the judgment entered upon such order.

*690The plaintiffs now malee the claim that the appeal from the order should be dismissed, and that the appeal, from the judgment brings up nothing for review but the question whether the judgment appealed from is in accordance with the order of the general term, as there was no statement in the appeal from the judgment that the appellant intended to bring up for review any intermediate order, as pointed out by sections 1301 and 1316 of the new Code. There is no foundation for the claim. The exceptions of the appellant were ordered by the trial court to be heard, in the first instance, at the general term, and it was pursuant to such direction that the argument of such exceptions was then had, and the decision of the court upon such argument was made in the form of an order, and that order was simply a written authority upon which to enter the judgment, and was not such an intermediate order as is referred to in section 1301 or 1316, and no appeal would lie from it to this court. But, after the entry of judgment, an appeal from such judgment brings up for review the exceptions taken by defendant upon the trial. The appeal taken by defendant from the order, as -well as from the judgment, was useless, but evidently taken from more abundant caution ; and, if that were the only appeal in the ease, it would have to be dismissed as unauthorized, yet, as it is taken in connection with the appeal from the judgment which brings up all the exceptions for review, there is no necessity to formally dismiss the appeal from the order. But upon the merits of the appeal, quite an important question arises in relation to the law of evidence. The court directed a verdict for the plaintiffs, and if, therefore, there were evidence enough to authorize a submission of the question of fraud to the jury, the judgment must be reversed. We think there was, and had it not been for the rule of law adopted by the court below, we suppose that court would have been of the same opinion. That rule was that as the defendant called a witness by whom he attempted to prove the fraud, and as that witness denied it, the defendant was bound by that denial, in the absence of contradiction by some other witness, even though the jury might think some parts of the evidence of the witness clearly showed its existence. To show exactly how the question arose and what was decided by the court, some reference must be made to the testimony, although it will be unnecessary to allude to it at all.

The assignor, Exstein, was a merchant engaged in a large business in Buffalo. He kept regular books of account in his business, which were produced upon the trial, and he was called as a witness for the defendant, and gave evidence in relation to the books and upon other matters. His assignment was made on the seventeenth of October, and on the sixteenth of that month he made entries in several accounts, which he kept, crediting quite large sums of money to the different persons named *691in such accounts, the result of which entries was to cause it to appear by the books, that the assignor was in their debt to a somewhat large amount, while if the entries as of the sixteenth of October were stricken out it would then appear that the parties instead of being creditors were in reality debtors of the assignor. When on the stand he substantially stated that if those entries were stricken out, the state of affairs between himself and those persons would be as represented in the books, or, in other words, that excluding those entries and the circumstances upon which they rested, some of these persons would be his debtors. He also said that these entries did not in fact represent any actual transactions occurring at the time when they were made, and that no valuable or other consideration passed between him and those parties at such time. Stopping with these facts it would appear then that credits were given these persons the day before the assignment, upon which some of them drew out moneys from him, and upon the basis of which one was made a preferred creditor in the assignment, and yet such entries represented no actual present transactions happening at the time when they were made.

Unexplained it would appear that as a result Exstein had provided for the payment of large sums of money, or had already, and in view of his assignment, paid such sums to persons whom he did not owe, or in other words, he had paid and also made provision in his assignment for the payment of fictitious debts. The defendant, however, proceeded with his examination of this witness, and asked for an explanation of these entries and the facts or circumstances upon which they were based, and the witness proceeded to give it. The explanation was, if true, sufficient in law, and showed that he did owe the persons the amounts he claimed to, with the possible exception of one or two cases in which the defendant claims that even on the basis of the gen eral truth of the explanation, the witness had charged himself in reality with more than he owed. The defendant then rested, and the plaintiffs, with the evidence in this state, asked for a verdict in their favor by the direction of the court, and obtained it.

The court held in substance that the books of the witness Exstein showed a *prima facie*case of an indebtedness of the witness in the amounts therein appearing, and to the persons therein mentioned, and the witness said they were correct. He then stated what has already been alluded to as to those entries made on the sixteenth of October, and continued by explaining the facts upon which they were based. This explanation the court said was totally uncontradicted by any other witness, and ■defendant was, therefore, bound by what Exstein said on that subject, for the reason that he could not discredit or impeach him, *692and must take what he said as, under the circumstances of the case, true.

If that were the true rule the court was correct in directing a Yerdict. The general term, it must be presumed, also took the same view of the ease in directing judgment for the plaintiffs, without delivering auy written opinion.

The general rule prohibiting the impeachment or discrediting of a witness by the party calling him was extended too far in this case. Here was an issue of fraud in the making of an assignment by the assignor, and the defendant, in order to prove its existence, called the very man as a witness whom he alleged was guilty of the fraud. He might well be regarded, therefore, as an adverse witness whom the party, by the exigencies, of his case, was obliged to call.

With regard to such witnesses, it is well settled that all the rules apjolicable to the examination of other witnesses do not in their strictness apply. An adverse witness may be cross-examined,'and leading questions may be put to him by the party calling him, for the very sensible and sufficient reason that he is adverse, and that the clanger arising from such a mode of examination by the party calling a friendly or unbiased witness does not exist.

What favorable facts the party calling him obtained from such a witness may be justly regarded as wrong from a reluctant and unwilling man, while those which are unfavorable may be treated by the jury with just that degree of belief which they may think is deserved, considering their nature and the other circumstances of the case.

Starkie, one of the ablest and most philosophical of English writers on this branch of the law, in speaking of a reluctant or adverse witness, uses almost the precise language above stated, and which has been substantially quoted from him. Starkie Ev. (9th ed.), marg. p. 248. Sometimes rather loose language has been indulged in to the general effect that a party cannot impeach his own witness, but when an examination is made as to the limits of the rule, the result will be found to be that it *only*prohibits this impeachment in three cases, viz. : (1) the calling of witnesses to impeach the general character of the witness, and (2) the proof of prior contradictory statements by him ; and (3) a contradiction of the witness by another, when the only effect is to impeach, and not to give any material evidence upon any issue iu the case. *Lawrence*v. Barker, 5 Wend. 301-305; *People*v. *Safford,*5 Denio, 112; *Thompson*v. *Blanchard,*4 N. Y. 303-311; *Coulter*v. *Express Co.,*56 N. Y. 585; 2 Starkie, Ev. (9th Amer. Ed.) marg. pp. 244-250; 2 Phil. Ev. (C. & N. & Ed. notes) marg. pp. 981-983, and note 602; 1 Greenl. Ev. § 442.

In regard to the first class, the rule has been stated to rest *693upon tbe theory that, when a party calls a witness, he presents him to the jury as worthy of belief, and to allow him to call witnesses thereafter to impeach his general character as a man would be to permit an experiment to be made upon the jury by producing a person as worthy of belief, whom he knows, and has witnesses to prove, to be the contrary, and, if his evidence be favorable, to get the benefit of it, and, if the reverse, to overwhelm it by the impeaching witnesses. In such a case as this, however, there is no deception. The defendant calls the very man he accuses of the fraud as a witness to prove it, and says in effect to the jury that such evidence as the witness gives, which tends to show the perpetration of the fraud alleged, is forced from him by the exigencies of the case, ■and the surrounding facts which cannot be denied, while that which he gives which looks towards an explanation of the fraud the jury shall give such faith to as, under all the facts in the case, they may think it entitled to.

As to the second class in which an impeachment is forbidden, the authorities in England were in conflict, many of the judges thinking it allowable to prove prior contradictory statements by a witness ; but the weight of authority was against it, thereby creating the occasion for an interference by the legislature with the law of evidence, which passed an act permitting just such evidence under certain restrictions. See Common Law Procedure Act of 1854, (17 & 18 Vict. ch. 125, § 22.) The non-admissibility of such evidence in the courts of this state is, of course, not open to discussion. It is alluded to only to show the opinion of the English parliament (in matters of this nature almost exclusively guided by lawyers) upon this question of impeaching one’s own witness, and the readiness of that body to alter the law of evidence in the direction of what seemed to it greater opportunity of ascertaining and administering that for which all courts are instituted, viz., truth and justice.

The third of above classes where no impeachment is allowed, is plainly set forth in several of the cases and text-books above cited. It is not admissible, even in the case of a witness called by the other side, to impeach him by proof of prior contradictory statements on immaterial or collateral issues ; and there is not much difference in the two cases, and therefore no reason why it should be allowed with reference to one’s own witness. But all the cases concur in the right of a party to contradict his own witness by calling witnesses to prove a fact material to the issue to he otherwise than as sworn to by him, even when the necessary effect is to impeach him.

Why should not the right exist to show that a portion of the evidence of your own witness is untrue by comparing it with another portion of the evidence of the same witness? The *694courts below say in effect that although a portion of Exstein’s evidence shows that he provided for payment in his assignment for fictitious debts, yet the other portion of his evidence — if believed — shows that such debts weje not fictitious, and although the defendant was at liberty to call other witnesses to prove that the explanation was false, yet as he did not do so the explanation must stand as matter of law, and he cannot be heard to contend that - it is proved false by its own absolute and inherent improbability. We do not believe, at least in such a case as this, that the rule goes to any such length.

The plaintiffs cite the case of *Branch*v. Levy, 46 N. Y. Super. 428, as upholding the rule laid down by the trial court. The plaintiffs there brought an action to recover damages from defendant for the non-delivery of coupons bought from the defendants’ agent as plaintiffs claimed, but defendants denied the agency, and alleged they had sold the coupons to the person whom plaintiffs alleged was their agent, and had no liability for his subsequent acts. On the trial the plaintiffs-sustained their claim *prima facie*by certain letters and circumstances which — as the court said — in the absence of explanation by defendants, made a question for the jury. The plaintiffs then for some inexplicable reason called one of the defendants, who swore that the person selling the bonds to the plaintiffs was not the agent of the defendants, but they had simply sold him the bonds. The court held the plaintiffs concluded by this evidence and that they must take it as wholly credible ; that' credibility could not be divided and that it was attached to the moral character.

That case comes very near the one under discussion, and it is hard to see why the plaintiffs should not have been allowed to go to the jury upon the whole of their case, letters, documents and explanation and why they .should not have been allowed to ask the jury to believe the documents and letters and reject the explanation as in their judgment untrue. To say that credi- • bility is a part of the moral character and indivisible is to run counter to the well-established rule as to adverse witnesses above referred to, whose testimony you may ask a jury to believe in part, and to disbelieve the residue. The case ought not to be followed.

It is a good general rule that the credibility of a witness is-matter for the jury, and the fewer technical obstructions there-are to the practical operation of that rule the better.

We think that the whole evidence of Exstein in this case should have been submitted to the jury for them to pass upon its credibility, and that they were at liberty to believe that-portion which tended to show the debts to be fictitious and to disbelieve the explanation, or that they might regard it as suffi*695cient just as in their judgment, intelligently and honestly exercised, they might determine.

Of course we do not mean by this decision to give any intimation as to which view should be taken by the jury, we only decide that it was a question for them and not the court.

The judgment should be reversed, and a new -trial *granted;*costs to abide the event.

All concur.