Katz v. Brooklyn, Queens County & Suburban Railroad

Lehman, J.

The plaintiff brought an action for damages sustained by her through the alleged negligence of the defendant.

The plaintiff had no witness to the accident except herself. The defendant produced several witnesses, including one Henry Cohen. Cohen was asked upon cross-examination whether he did not tell the plaintiff’s husband that he would be a witness for her provided she paid him twenty-five dollars; the witness answered in the negative. The plaintiff’s husband was, thereupon, allowed to take the stand in rebuttal and state that the witness had said to him that he would be a witness for the plaintiff if he -paid him twenty-five dollars.

The appellant claims that this conversation should not have been admitted; that the question was collateral to the issues and that the plaintiff was, therefore, bound by the answer which she received from the witness' on cross-examination. In the case of Deutschmann v. Third Avenue R. R. Co., 78 App. Div. 413; 87 id. 503, the court held that evidence that a witness for the defendant was offered money by a representative of the defendant to testify was improperly admitted in contradiction of the testimony of the witness on cross-examination that he had not been offered money. On this ground the Appellate Division reversed the judgment. It appears to me that, upon the authority of that case, we are bound to hold that the question in this case goes only to the general credibility of the witness; that, even if the testimony were true, it would not show hostility; and that the judge erred in admitting the testimony.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Seabury, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.