The defendants having alleged that a check, the subject of the cause of action, had been obtained through the original payee by fraud one of them, called as a witness to prove execution, being asked by the plaintiff’s counsel, “Your firm stopped payment on that check?” replied, “Yes, sir.” On cross-examination his own counsel questioned, “Why did you stop payment ?” and, that remaining unanswered, because of objection and interruption, again, “You were asked why you stopped payment on that check?” To that the court said: “He cannot tell anything about it.” Thereupon the plaintiff rested. The defendants’ counsel asked that the plaintiff take the stand, and then, he not being present, asked for adjournment of the trial, whi'h being denied, offered no evidence, but, judgment being rendered for the plaintiff, moved for a new trial. From a denial of that motion comes this appeal, whereupon the exception to the utterance of the learned justice presents the sole question.
Whether or not payment of the check was stopped was not a fact in issue, and so one respecting which the defendant was entitled to cross-examine the witness at some time during the trial, but only an incident proper to be inquired about because of its introduction by the plaintiff. To the question proposed there was an obvious and sufficient objection, although the facts constituting the incident, possibly moving the defendant, might have been gone into fully enough upon questions duly calling for them. No such questions were asked; nor was attempt or offer made to sustain the defense set up in the answer. The utterance excepted to was rather compassing, and may have disconcerted even discouraged counsel. Still it remained his office to put in his clients’ defense, if they had one as alleged. The judgment should be affirmed.
Judgment affirmed, with costs.
AMEND, J., concurs. GIEDERSLEEVE, J., concurs in result.