Tifft v. Moor , 59 Barb. 619 ( 1871 )

By the Court, Johnson, J.

The action is upon a promissory note given by the defendant to the plaintiff. Defense, usury. Two questions only are made by the appellant’s counsel: 1st. On an exception to a ruling excluding evidence on the cross-examination of the plaintiff as a witness; and, 2d. On an exception to the charge of the judge to the jury. On the trial the plaintiff' was a witness on his own behalf, in reply to the defendant’s defense. On his cross-examination by the defendant’s counsel, he was inquired of in regard to his having before that time lived in Auburn, and his occupation while there. On being inquired of as to the object of this examination, the defendant’s counsel avowed that it was tó show the witness to have been a convict.

The plaintiff’s counsel objected to the evidence,- and it was excluded, and exception taken. The ruling was correct. The fact of the conviction could not be .shown in this way; even on- cross-examination, for the purpose of impeachment. The rule is well settled. (1 Greenl. Ev. § 457. Newcomb v. Griswold, 24 N. Y. 298.)

The note in suit was given to take up a former note of the defendant’s, which was admitted to have been a valid note. The usury, as the defendant alleged and testified, was in adding ten or twelve dollars, by way of bonus, over and above the amount actually due on the former note, for extending the time of payment one year, which the new note had to run. On this question of usury there was much conflict of evidence. The judge submitted the question of usury to the jury upon the evidence, and instructed them that in case they should find there was no usury in the note, their verdict should be for the plaintiff, for the full amount thereof, principal and interest. He also charged the jury that in case they should find that a bonus had been added, over and above the amount due on the old note surrendered, they should still find a verdict for the amount which would be due on the old note. To this charge and ruling the defendant’s counsel excepted.

The jury rendered a verdict for the plaintiff for the full amount of the note in suit, finding, on the question of usury, against the defendant. If the charge had been erroneous in this particular, it would not authorize a reversal of the judgment, as it could by no possibility have prejudiced the defendant. The jury found against him on the issue of usury, and the other question was thereby rendered wholly immaterial. The error, if it was one, did not and could not affect the judgment, and is no cause for reversal. But the charge was correct as a legal proposition. (Cook v. Barnes, 36 N. Y. 520. Winsted Bank v. Webb, 39 id. 325. Farmers and Mechanics’ Bank v. Joslyn, 37 id. 353.)

The objection now raised is, that no such cause of action was stated in the complaint. This objection was not taken, or raised at the trial, and would not be available here had the question been material. Had it been taken there, it might have been obviated by an amendment on terms, or otherwise. But as the question was immaterial, in. the view the jury took of the case, it is of no consequence on the appeal.

[Fourth Department, General Term, at Buffalo, June 5, 1871.

Judgment affirmed.

Mullin, P. J., and Johnson and Talcott, Justices.]