15 Daly 444 | New York Court of Common Pleas | 1890
The jury were correctly charged that if plaintiff delivered the diamond ring referred to in the complaint to Alexander Katen, with authority to exhibit it to a particular person, and to sell it to such person if the latter wished it, said Katen was not thereby given a power of disposition sufficiently broad to enable him to pledge said ring. The jury were further instructed that if Katen was given general power of sale and disposition of the ring, his pledging of it was within the scope of his legal authority, and that defendant would be entitled to hold the property as security for the sum actually advanced. The learned judge in his charge, followed the case of Heilbronn v. McAleenan, 1 N. Y. Supp. 875, (in the general term of the supreme court of this department,) and we concur in the exposition of the law therein given by Presiding Justice Van Brunt.
Hor did the trial judge err in instructing the jury to disregard the statements made by Mr. Lynn upon the hearing before the mayor, in the proceeding against defendant for alleged violation of his pawnbroker’s license. Such statements, as the trial judge intimated, might with propriety have been excluded when .offered in evidence. Mr. Lynn is a member of the bar, and appeared upon the hearing before Mayor Hewitt as counsel. He was retained by Mr. Herbert, and not by plaintiff, although plaintiff admits that he “supposed” Lynn represented him (plaintiff) as well as Herbert. Plaintiff further avers that he did not authorize Mr. Lynn to make the statements upon which defendant relies, and that he did not hear Mr. Lynn make them. This testimony would tend to negative any express authority on the part of Mr. Lynn
The learned judge did not err in admitting the conversations between-plaintiff and Eaten at the time of the delivery, and as to the return of the ring. The very point to be proved was the extent and nature of Eaten’s power of disposal of the ring. This necessarily proceeded from some communication from plaintiff to Eaten, and, as there was nothing in writing between them, the best evidence was a verbatim account of the conversations that they had.
Another point has been urged by appellant, which I feel called upon to-notice, because it seems to involve a misconception of a previous decision of this court. The trial judge, in his charge, read to the jury a portion of the opinion of Jud'ge Van Brunt in the case of Heilbronn v. McAleenan, above referred to, telling them that the law governing the case at bar was therein laid down. Said opinion contained a statement of facts, and an application of legal principles to them, but also divulged the circumstance, incidentally and as part of the argument, that in that case the jury had found for plaintiff. Under the decision in Reich v. Mayor, 12 Daly, 75, appellant claims that erra was committed necessitating a reversal. The Reich Case was simply an extension of the doctrine that tile jury must receive instructions on the law from the court, and not from counsel. Many eases will be found in the books-holding that counsel may not, in summing up, read law-books to the jury. Reich v. Mayor merely decided that if a counsel, after being directed to close-a book from which he was reading, goes on and states from memory the substance of what the book contains, and informs the jury of the decision in the reported case, he will have broken the rule just as effectually as if he had read from the printed book. This is the scope of that decision, as I understand it, and in my opinion it has no application to the case at bar. It is the duty of the judge to guide the jury, and whether he states the law from his-own knowledge and memory, or reads it from decisions, treatises, or his own manuscript, is immaterial. It is within the province of the court to say that a certain case is in its facts very like the case at bar, provided, of course, that