(dissenting). The plaintiffs were booksellers md stationers, in the city of Albany. They claimed that one Mason, when in their service as a porter, had feloniously taken all, or a portion of the blanks and papers in question, from their store, and that such blanks and papers had been subsequently received and converted by the defendants, who were extensive dealers in paper materials in the city of Albany.
The first witness sworn on the trial, on the part of the plaintiffs, was Erastus H. Pease, who was one of the plaintiffs. He was asked what became of the porter, Mason, to which the defendants objected. Pease answered, “ He was arrested in a few days, and sent to Clinton prison.” Plaintiffs’ counsel then said, he only wished to account for the absence of the porter. The judge allowed it. The defendants’ counsel excepted to it as immaterial, and as calculated to improperly prejudice the case.
Pease was then asked: “ The porter was then sentenced *522for this theft, and went to Clinton prison % ” when the defendants’ counsel made the same objection he had previously taken, and there was the same ruling and exception as had been previously made and taken. Pease answered, “ Yes, he was sent to Clinton prison.” He also testified that the porter was arrested and sent to the prison at Clinton on the complaint of the plaintiffs.
It was material for the plaintiffs to establish that their porter, Mason, stole the goods in question from them. But they could not establish that fact by proving that Mason had been convicted of stealing the goods, and sent to the State prison at Clinton. The record of his conviction and sentence, would not have been evidence for the plaintiffs in this case. It was not necessary for the plaintiffs to account for the absence of Mason. If he had been in court during the trial, the omission of the plaintiffs to call him as a witness, would not have been a circumstance against them. They claimed that he stole the goods in question from them, and it could not be expected that they would or should call him to prove the larceny. The fact that Mason had been convicted of stealing the goods and sent to Clinton prison therefor was not competent evidence for the plaintiffs, and I am ©f the opinion it cannot be regarded as entirely harmless — that it could not have prejudiced the defendants before the jury. They might have considered the fact that Mason had been convicted of stealing the goods and sent to' the State prison therefor as establishing that he did steal such goods, when it was necessary for the plaintiffs to prove that fact by other and different evidence. And I am unable to see that the admission of evidence of that fact was an immaterial error that did not affect the .merits of the case unfavorably to the defendants, as it probably would have been if it had not been material for the plaintiffs to establish that Mason stole the goods.
The judge properly refused to charge the jury that where a witness is false as to one statement, they ought not to place implicit reliance upon other statements made by that witness.
He had already charged the jury that the defendants had *523put in evidence an affidavit made by the plaintiffs’ witness, Griffith, bearing upon his evidence, from which they asked the jury to infer that his statement in court differed from his affidavit; that the jury heard his explanation about it, and had heard the affidavit read, and that it was entirely for the jury to give to the affidavit the weight to which it was entitled under the circumstances, so. far as it bore upon Griffith’s evidence, and that the jury should take his evidence as an entirety with the affidavit. This charge was sufficient on that question, as it was not alleged or insinuated, in the request to charge that Griffith had intentionally sworn falsely on any question or point in the case. Whether implicit reliance was to be placed on any portion of the evidence of Griffith, was a question for the jury to determine. The judge charged the jury that the plaintiffs would be entitled to interest, upon the value of the property in question, from the time the same was disposed of by the defendants ; to which portion of the charge the defendants’ counsel excepted. I am of the opinion the plaintiffs were entitled to interest if the evidence justified a verdict in their favor. (See Andrews v. Durant, 18 N. Y. Rep., 496.)
It cannot be said that the verdict of the jury was against the evidence. There was sufficient evidence to make the case one for the jury to determine. I think the judge did not err in refusing to nonsuit the plaintiffs, or in charging the jury, or in refusing to charge either of the requests of the defendants’ counsel, or in any ruling on the trial, except in permitting the plaintiffs to prove that they had procured their porter, Mason,, to be convicted of stealing the goods in question, and that he had been sent to the State prison at Clinton for that offence; and for that error, I am of the opinion the judgment in the action should be reversed and a new trial granted, costs to abide the event.
Judgment affirmed.