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Opinion of the Court, per CHURCH, Ch. J.

discretion, permit its introduction at that time, but the regular course was to wait until his turn came to put in evidence, and this he did.

It is said that the letter should have been introduced in evidence at the time, so that the witness might either explain his evidence or the statements contained in the paper. Without determining whether the court might, in its discretion, permit that course, the orderly way was to withhold the paper until the party had the right to produce evidence on his part. It was his evidence, and strictly he had no right to produce it until the other party rested, and he took the case. The witness could then be recalled and make any explanation he might have. Neither his rights nor that of the party would have been interfered with by this course. In the case of oral declarations out of court, the contradicting witnesses are never called until the party proposing to introduce them has the right to produce evidence on his part, and the explanations of the witness sought to be impeached are usually given after that, although the court may sometimes vary the order of evidence as a matter of discretion. The rule is substantially the same in both cases, except as it is necessarily varied by the nature of the impeaching evidence. As to oral declarations, the attention of the witness must be called to the time and place and particular language used, in order that he may recall the circumstances and make an intelligent answer, but, as to written statements, this is unnecessary, when the witness is shown the paper itself, and admits that he wrote or signed it and knows its contents. The rule indicated preserves the orderly course of the trial, and does no injustice to the witness or either party, and such I understand to be the rule sanctioned by authority. In 2 Greenleaf on Ev., $ 463, it is said that if the witness "admits the letter to be his writing, he cannot be asked whether statements, such as the counsel may suggest, are contained in it, but the whole letter must be read as the only competent evidence of that fact. According to the ordinary rule of proceeding in such cases, the letter is to be read as the evidence of the cross

Opinion of the Court, per CHURCH, Ch. J.

examining counsel in his turn, when he shall have opened the case."

The same rule is laid down in 2 Phillips on Ev., 807.

In Clapp v. Wilson (5 Denio, 288), the court said: “This being a sworn statement in writing, it was not necessary to call the attention of the witness in the first instance to the statements in it, which were intended to be relied on with a view to explanation. This is only necessary when naked contradictory statements are referred to for the purpose of impairing the confidence in the witness." In that case the paper had been shown to the witness and the signature admitted, and it was objected on the argument that it had not been read in evidence on the trial. The court assumed that it had; and held that it was unnecessary to call the attention of the witness, in the first instance, to particular passages contained in it for the purpose of explanation, and we think, held correctly; although from the language used, without reference to the facts, it might be inferred that it was unnecessary to call the attention of the witness to the paper at all. The learned judge who delivered the opinion of the court below claims that these authorities have been overruled, and the rule changed by this court. With great respect, I cannot agree with him. He refers, to establish this, to Hubbard v. Briggs (31 N. Y., 518); Stephens v. The People (19 id., 549); Newcomb v. Griswold (24 id., 298). In the first case (Hubbard v. Briggs) the testimony of a deceased witness was read by stipulation; and it was then proposed to read a deposition made by him in another action to contradict his testimony. This court held this to be incompetent, because the attention of the witness had not been called to the statements proposed to be read. The manifest distinction between that case and this is, that in this case the attention of the witness was called to the deposition proposed to be read; he knew its contents, and had, or would have, every opportunity for explanation, while, in that case, the attention of the witness was not called to the paper at all; and no opportunity was or could

Opinion of the Court, per CHURCH, Ch. J.

be afforded him for explanation. The point determined here was not up in that case. The proper time for explanation is after the paper has been read; and that, as we have seen, is when the party proposing to offer it can introduce evidence on his part, and the attention of the witness is sufficiently called to it in the first instance by showing it to him, and giving him an opportunity to know what it is, and his admitting or denying its authenticity. These points were not in the case nor discussed. In Stephens v. The People (19 N. Y., 549) the court below had permitted such parts of the deposition taken before the coroner of two witnesses to be read as had been called to their attention during their examina tion, and rejected the other parts. The court held that this was not error; but if it was, it was cured by the subsequent introduction of the whole deposition; and it was also held that the introduction of the deposition of another witness was not error, as there was no objection made that the attention of the witness was not called to it.

It cannot be claimed that the court intended to decide that the attention of the witness would not be sufficiently called to the paper by what took place in this case. No such point was presented, and the language of the court must be referred to the facts of the case. In Newcomb v. Griswold it was merely held that a witness is not bound to answer as to matters reduced to writing by himself or another, and subscribed by him, until after the writing has been produced and read or shown to him. The supposed conflict between the authorities is attributable more to the apparent difference of expres sion than to a deliberate intent to change the rule. In neither case does the court discuss the rule above alluded to, or cite any authorities, or intimate an intention to change or modify the rule laid down in the elementary books. The result of all the authorities is that it is sufficient for a party, proposing to impeach a witness by proving inconsistent written statements, to show him or read to him the paper, and, if its genuineness is admitted, to introduce it, when he has a right to put in evidence; and that it is not the legal right of

Opinion of the Court, per CHURCH, Ch. J.

the other party or the witness to enter into any explanation of the contents of the paper until after it has been introduced in evidence. The court may doubtless permit the explanation in the first instance, and may vary the order of proof in this as in many other cases for the purpose of eliciting truth and preventing injustice. Many questions of this character are within the discretion of the court; but here the plaintiff pursued the usual and legal course. The witness admitted the genuineness of the paper and knew its contents. His attention was sufficiently called to it. Neither he nor the defendant asked the privilege of explanation, nor demanded the reading of the paper. The plaintiff offered the paper at the right time, and it was error to reject it. The court not only refused to permit the introduction of the paper on the ground that no foundation had been laid, but, after the plaintiff had recalled the witness for the purpose of laying the foundation, refused to permit the necessary questions to be put to him, on the ground that it was discretionary with the court to allow a witness to be recalled. Whether such an exercise of discretionary power against a party is not legal error it is not requisite to determine, as the recall of the witness was unnecessary.

The deposition offered in evidence is not before us, and we cannot, therefore, say that the plaintiff might not have been prejudiced by its rejection. The result may have been the same; but as there is no legal rule by which we can so determine for the error in rejecting it, the judgment must be reversed and a new trial ordered, costs to abide the event.

All concur.
Judgment reversed.

Statement of case.

49 583 119 14

HANNAH M. WEBB, Respondent, v. JONATHAN ODELL et al.,

Appellants.

49 583 134 96 49 583 148 134

49583 e165 123

A motion to dismiss a complaint upon the ground that plaintiff has no

cause of action should specify the defect, so that plaintiff may have an opportunity to supply it if in the evidence, or may move to amend the complaint. Where the defect is not specified and the motion is denied, an exception to the decision is not available, if any view of the evidence would sustain a cause of action, and not then unless it appears that the

defect could not be supplied. Where one sells promissory notes at less than their face, representing them

to be business paper when in fact they are accommodation notes, and thus usurious and void in the hands of the vendee, the latter may rescind the contract and recover back the purchase-money although there be no fraud or warranty. It is no answer that the parties to the paper might waive the defence and pay them.

(Argued May 29, 1872; decided June 11, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, affirming a judgment in favor of plaintiff entered upon a verdict and affirming an order denying a motion for a new trial.

The action was brought to recover back the amount paid by plaintiff upon the purchase by her of defendants of four promissory notes. Plaintiff purchased of defendants in December, 1866, and in January, 1867, one note of Amos Willets of $1,452.23, one of Shepard & Cochran for $1,569.38, and two of Henry G. Evans, one of $1,325, the other of $7,924. All of these notes were made payable to and were indorsed by Wilson & Company. The notes were accommodation paper made and delivered by the makers to Wilson & Company for their accommodation. Plaintiff purchased at eighteen per cent discount, defendants representing them to be good business paper. Upon ascertaining the character of the

paper the notes were tendered back and a return of the money paid demanded, which was refused. Upon trial defendants moved for a dismissal of the complaint upon the

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