[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 177 Precisely what the powers of a judge in settling interrogatories to be annexed to a commission are, has not been much considered in reported cases. It is provided in the Code, as it was in the Revised Statutes, that the interrogatories are to be settled by a judge upon notice. (§§ 891, 892.) I believe it has been generally understood that the judge has some power to determine what interrogatories may be annexed to the commission, and the form of them. If he has not such power, then the requirement that the interrogatories "must be settled" has little or no significance; and if he has no power to decide anything, there certainly can be no reason for troubling him about the matter. (MacDonald v. Garrison, 9 Abb. Pr., 178.)
The statute provides that either party must be allowed to insert "any question, pertinent to the issue, which he proposes." That right the judge cannot deny or curtail. Every such question he must allow. But he must have authority to disallow questions not pertinent to the issue, and hence to determine whether a proposed question is pertinent or not. But as he cannot always foresee precisely what evidence the exigencies of the trial may render proper, and as the statute reserves the right to either party to make at the trial any objection to questions or answers which he could make if the witnesses were testifying there orally, the power to exclude questions should be sparingly exercised. But if questions clearly impertinent or incompetent or immaterial are proposed, he should refuse to allow them; otherwise the appearance of the parties before him would be an idle ceremony. *Page 180
The Code provides that either party may insert any question "pertinent to the issue." The Revised Statutes provided that either party might insert any question "pertinent to the cause." (2 R.S., 394.) Both phrases clearly have the same meaning. It was undoubtedly intended that either party should have the right to put every question to a witness by commission which he could put to the witness if he were examined orally at the trial.
The question upon plaintiff's appeal is whether the judge erred in disallowing the fourth, sixth and eighth cross-interrogatories.
The action is to recover certain damages. The defense is that the defendant had settled for the damages, by the payment of $500, and obtained a written release. The plaintiff claims that the release is a forgery, and that the forgery was committed by the witness to be examined, and that if the defendant paid the money, it was taken and kept by the witness. The character and credit of the witness are, therefore, of great importance, and competent evidence, showing what they are, quite material. Questions may, therefore, be put to him, upon his cross-examination, tending to discredit or disgrace him generally; and he may also be questioned as to his conduct and acts about the time of the alleged forgery, with the view of showing his guilt. Such evidence need not be of a conclusive nature. It is competent if it throws light upon the principal fact to be proved, and if, with other evidence, it would tend to prove that fact.
Suppose it could be shown by the cross-examination of this witness that, at the time of the date of the alleged release he was living upon his salary, and that his family expenses were as much as his salary, or more; that immediately after this transaction he quit the service of the defendant and left Albany in the night time, leaving his family behind him; that he left alone, or in disreputable company; that upon his route to his destination he traveled and behaved in a suspicious or discreditable manner; that just before leaving, *Page 181 and in close proximity to this transaction, he created debts, by borrowing money or otherwise, for the purpose of filling his pockets before his departure; that he purchased for his wife an India shawl for just $500, or near that sum, having no honest means wherewith to make the purchase; would not questions to elicit such facts be competent? I think they would; and such facts might have been elicited by these cross questions. The questions were, therefore, pertinent; and being so, the judge could not rightfully exclude them. It was not for him to determine that the questions might not elicit the facts sought, or that the facts would not be very important if elicited. The plaintiff had the statutory right to the questions.
It is true that a judge at the trial generally has a discretion as to the extent to which he will permit a cross-examination, for the purpose of merely testing the credit of a witness, and upon matters collateral to the main issue on trial, to be carried; and the exercise of such discretion, unless clearly abused, will not be interfered with by a court sitting in review of the trial. That is a discretion to be exercised by the judge presiding at the trial; and in exercising it, he has before him, for his guidance, the appearance of the witness, if orally examined, the evidence he has given upon his direct examination, and all the facts of the case as they then appear; and he is thus able to judge whether a further cross-examination will aid the ends of justice. But a judge in settling interrogatories has no such discretion. He cannot tell what the exigencies of the trial may be, and he cannot determine how far a cross-examination may be required to be carried, nor precisely what facts will become important. He must, therefore, insert all pertinent questions, although a judge sitting at the trial might, in the exercise of his discretion, there exclude them.
But it is claimed by the learned counsel for the defendant that the plaintiff's remedy, if any, for the exclusion of his questions was by mandamus to compel their allowance, and not by appeal to the General Term. Without denying that *Page 182 the plaintiff might have a remedy by mandamus, I have no doubt that he could appeal.
The decision of the judge in settling the interrogatories was required to be in writing and such decision is an order in the action. (Code, § 767.) In this case, an order was drawn up satisfactory to the attorney for both parties and was by consent entered in the clerk's office. So far as it disallowed plaintiff's pertinent questions, it affected a substantial right and was, therefore, appealable under sections 1347 and 1348 of the Code.
The General Term did not err in deciding that the ninth cross question should be annexed to the commission. Such questions have frequently been decided competent. An appeal, however, should not be allowed because an improper question has been ordered to be annexed to a commission; because it affects no substantial right, as the party can make the objection at the trial and be fully protected there.
Briefly, to some extent, restating my views, I say if the judge, in settling interrogatories to be annexed to a commission, disallows a pertinent question, he commits an error which will be corrected upon appeal, unless it can be seen that the error can do no harm to the party who complains of it. If he allows an improper question, there is no right of appeal, as such allowance does no substantial harm, the party objecting to the question being able to protect himself at the trial by objections there made.
The order of the General Term, so far as the defendant has appealed therefrom, must be affirmed, without costs to either party upon the appeal to this court, and so far as the plaintiff has appealed therefrom, must be reversed; and the fourth, sixth and eighth cross-interrogatories must be allowed and annexed to the commission; and upon her appeal, the plaintiff must recover costs of the defendant.
All concur.
Ordered accordingly.*
* The remittitur was upon subsequent motion amended so as to give plaintiff costs against the defendant on her appeal to the General Term and to this court. *Page 183