Huebner v. Roosevelt

Citations

• 7 Daly 111

Syllabus

<p>A witness cannot be impeached by showing that certain circumstances to which he has testified on the present trial were omitted by him when testifying concerning the same occurrence on a former trial of the action, unless at the former trial the attention of the witness was particularly called to the circumstances which he then omitted to state.</p> <p>Where on the trial the defendant had been the only witness as to the terms of a verbal agreement that the defendant alleged had been made between himself and the plaintiff, and the j ury having found against him on the issue as to whether such •an agreement had ever been made ; on a motion for a new trial, on the ground of newly-discovered evidence, the defendant produced the affidavit of a person who swore to having heard such an agreement discussed between the plaintiff and ■defendant, and the plaintiff express a willingness to make it, and the defendant also swore that he had forgotten that the witness was present at any such conversation (which was eleven years before the trial), and that he was only reminded of it by the witness informing him of it after the trial. Held,</p> <p>1. That although the defendant had testified generally to the making of the agreement, yet, as no testimony had been offered as to this particular interview, the testimony was not cumulative.</p> <p>2. That the defendant’s excuse for not having produced the witness on the trial was reasonable, and that the evidence was of such a nature and weight under the circumstances as warranted the granting of a new trial.</p>