#### Josephine Becker, Respondent, *v.*Frieda Hart and Max Hart, Appellants.

Second Department,

December 30, 1908.

Trial — credibility of witnesses — plaintiff called as witness by defendant — bills and notes —payment.

Where in an action on- a promissory note the defendant calls the plaintiff and her son as witnesses and upon cross-examination they testify that the plaintiff was a *bona fide*holder before maturity, an issue for the jury is not raised on the mere ground of their credibility as interested witnesses. This, because a party who calls a witness vouches for his credibility in general and not solely as to matters to which he restricts his inquiry.

Where in such action there is evidence that the plaintiff became a *bona fide*holder for value before maturity, a defense of payment to the plaintiff’s transferor should not be submitted to the jury where there is no proof that the moneys ever came into the hands of the plaintiff and the payment was made to her transferor without requiring him to produce the note or otherwise show that he was the holder at the time.

Gaynor, J., concurred in result, with memorandum. .

Appeal by the defendants, Frieda Hart and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 19th day of February, 1908, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 10th day of March, 1908, denying the defendants’ motion for a new trial made upon the minutes.

*William Victor*Goldberg, for the appellants.

*Abraham A. Silberberg,*for the respondent.

Jenks, J.:

This is an appeal by the defendants from a judgment entered upon a directed verdict for the plaintiff in her action against the makers of a promissory note. The plaintiff alleged that she was a *bona fide*holder for value before maturity. The defendants admitted the making, indorsement and delivery of the note, but denied that allegation of the plaintiff, and pleaded payment. The defendants taking the affirmative attempted to show that the note came lawfully into the hands of Levy, to whom they paid the *512note, that the note was abstracted from the possession of Levy, who is dead, by his employee, and given to the latter’s mother, this plaintiff. The defendants insist that the learned court erred in its refusal to submit to the jury the question of the status of the plaintiff, for the reason that it was established, if at all, solely by the testimony of the plaintiff and her son — of whom both were interested witnesses, and the proposition is that the credibility of such testimony must have been submitted to the jury. I think that if this testimony had been adduced by the plaintiff and her son as witnesses for the plaintiff, the court should have submitted the question to the jury under the rule as stated and limited in *Hull*v. *Littauer*(162 N. Y. 569) and *Second Nat. Bank*v. *Weston*(172 id. 250). But both witnesses were called by the defendants, who, therefore, cannot now contend that the credibility of such witnesses must have been submitted to the jury. *(Hamilton*v. *Forsyth,*77 Hun, 578 ; *Hankinson*v. *Vantine,*152 N. Y. 20, 27.) I think that the application o'f this rule is not affected by the fact that the testimony as to the time of the acquisition of the note was first elicited upon the cross-examination of the witnesses. I think that the party who calls a witness vouches for his credibility in general, and not as to the matters as to which he alone makes inquiry. Wigmore on Evidence (p. 1011) says: “ The guarantee of credibility (if there is one at all) must relate to the witness’ general personal trustworthiness of disposition and emotion, not to the correctness of specific statements of fact; since the latter, as is universally conceded *(ante,*§ 907), may always be shown to be untrue. The guarantee is of the continuing, single quality of trustworthiness, and is therefore inseparable; it either is made or is not made, and it cannot be construed as existing for some statements and not for others.” Although the defendants gave testimony tending to show payments to Levy to be applied upon the note, it also appeared from their testimony that Levy did not jwoduce the note on the occasions of payment, but said that he had mislaid it, that he could not find it, that he would hunt for it and produce it, but that he never did so. When the court directed the verdict there was before it the testimony of the plaintiff and her son, both witnesses called by the defendants, that the son came to the mother shortly,after the making of the note *513and said that his employer, Levy, would sell the note for $l-,000, which was then paid by the plaintiff to her son, who gave the money to Levy, but transferred the note to the plaintiff, who has ever since been the holder thereof. The court was not required to present the question of payment to the jury, inasmuch as the contention was that these payments were made to Levy as the owner of the note (not as the representative of the plaintiff) without any proof tending to show that he was then the holder thereof, and there is no proof that the moneys thus paid ever came into the hands of the plaintiff. If the testimony of the plaintiff and her son were true, then the payments, if made, were made to Levy after he had parted with the note to a *iona fide*holder for value and before maturity. The defendants may suffer in that they did not protect themselves by insisting upon the production of the note, or by some proof that Levy was then the holder thereof, but that is their fault.

I think that the judgment must be affirmed, with costs.

Woodward, Hooker and Bioh, JJ., concurred; G-aykor, J., concurred in result in separate memorandum.

Gaynor, J. (concurring):

The plaintiff made out a case by putting the note in evidence. The burden was on the defendants to prove their pleaded defence that they had paid the note to the prior holder, and that the plaintiff received the note of him with knowledge of such payment. As no evidence thereof was given the plaintiff was entitled to a verdict. There was no question of credibility of any witness in the case; and I do not feel ready to assent to the proposition, not involved in the case, that simply because a party calls the adverse party, or an interested, hostile or biased witness, he thereby takes away from the jury the question of what, if any, credence or weight is to be given to the evidence of such adverse party or witness. By calling a witness a party vouches for his character to this extent only, viz., that he is not permitted to impeach him, as by showing that he has committed crimes, or by calling witnesses to blacken him as of a generally bad character, but he is entirely free to question the truth or credibility of his evidence *(Clancy*v. *N. Y., N. H. & H. R. R. Co.,*128 App. Div. 141). I am aware that loose *514and'inadvertent expressions to the contrary are to be found, but importance should not he attached to them, and especially by a court like this.

Judgment and order affirmed, with costs.