[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 245 I discover only two exceptions in this case which require special remark. The first is that taken to the ruling of the referee in excluding Exhibit C, which is the examination of the witness Hanbold on a former occasion in supplementary proceedings. At that time he testified that neither William Ward nor the defendant was in anyway or manner interested with him in the manufacture of powder at the Bronx River Powder Mills in the county of Westchester. This was supposed to be inconsistent with what he had testified to on the trial of the present cause, to wit: that he was at the time of obtaining the lumber in question managing the powder works with Miss Ward. But to entitle the examining counsel to show this discrepancy for the purpose of impeaching the credibility of the witness, it must either appear that the testimony related to a point material to the issue or trial, or to a fact brought out on the examination of theadverse counsel. It was neither. It was unimportant to the case to show whether Miss Ward had or had not any business connection with Hanbold in regard to the powder works. Such a fact could neither charge nor discharge the defendant with or from liability for the lumber; which liability rested upon the purchase of the lumber by the supposed authority of the general agent and its application to buildings of which she was confessedly the owner. The proposed contradiction was therefore to a collateral fact. It was further a fact drawn out on the examination of the *Page 246 defendant's counsel, and not being material in itself to the issue joined in the action the answer of the witness was not open to contradiction. The impeachment of the witness does not come within the rule quoted by the defendant's counsel, which is as follows. "The credit of a witness may be impeached by proof that he has made either verbal or written statements out of court contrary to what he swears at the trial, provided he has been previously cross-examined as to such alleged statements, and provided that such statements are upon a point material to the question in issue." (2 Phillip's Evidence, Edwards' edition, 958.Patchin v. The Astor Mutual Ins. Co., 3 Kernan, 268.)
The other exception was to the ruling of the referee allowing, on the application of the plaintiffs, certain testimony to be stricken out which the plaintiffs had themselves offered, and which the referee had received under objection, but not under exception. This testimony related to the declarations of the defendant's agent that he had paid for certain bills of lumber procured on a former occasion by Hanbold on the authority of such agent. Strictly speaking, perhaps, such declarations, not being within the direct scope of the agency, nor made in the execution of the agency, might be regarded as of doubtful propriety. But no exception was taken to the decision of the referee allowing them to be introduced in evidence. They were therefore not open to review in this court. But the plaintiff supposing them to be incompetent subsequently asked to have them struck out, and the referee granted the motion, and the defendant excepted to the decision. I do not think this was error. The testimony, if it had remained in the case, though in its effect prejudicial to the defendant, was not open to any allegation of error on her part. Its subsequent exclusion could not work her any legal injury. It is said, however, that by its introduction the defendant had acquired the right to impeach Hanbold in reference to the subject matter of it, which right was impaired and destroyed by its subsequent exclusion. But to this view *Page 247 there are I think two answers: 1st. that there is no evidence contradicting Hanbold on that point; and 2d. That the right to impeach Hanbold was by the referee expressly reserved to the defendant.
The other exceptions are of minor importance, and are not well taken. And some of them are not only untenable but frivolous.
The motion for a non-suit was properly overruled; there being sufficient evidence for the consideration of the referee. The other exceptions require no remarks. The judgment should beaffirmed.