The objection that the cause was irregularly put upon the calendar by the plaintiffs’ counsel, and urged to trial, should have been brought before the *268special term, on motion to set aside the verdict, and cannot be alleged as error, after a trial has been had. It is not a ground of error, affecting the judgment upon an appeal therefrom.
[NEW York General Term, January 7, 1866.The court, at the trial, admitted in evidence a certificate in writing, signed by the witness Barstow, that the note, discounted by the plaintiffs on his application, was business, paper. The certificate was not admitted to prove that the paper was given for a good consideration, but for the purpose of affecting the credibility of Barstow as a witness for the defendant. Barstow testified that he procured the indorsement of the defendant Marsh at the- request of Mr. Ellithorpe, the maker of the note, and that Marsh had no interest in the note or in its proceeds. The indorsement of Marsh was upon the note when the certificate was given, and- before the plaintiffs discounted it. ■ The evidence was, in effect, that, as to Marsh, the note had no vitality,, and was not business paper. It was inconsistent with his certificate-in this respect. The certificate was. competent to show that the witness had made a statement at variance with the testimony given at the trial, under circumstances tending to defraud the plaintiffs, if his certificate was untrue; and would thus seriously affect the degree of credit to be attached to- his evidence.
His certificate was given to the plaintiffs -to. induce them to part with their money, and imperiously required :a strict regard to truth, as well as in the case of a witness while testifying. A false' statement in either case, involved a moral turpitude that would well justify a jury in discrediting the witness. ' ■
The evidence was properly admitted,, and the judgment should be affirmed with costs.
Leonard, Clerke and Sutherland, Justices.]