54 A.D. 318 | N.Y. App. Div. | 1900
The court, upon the trial of this action, found that on February -26, 1889, Stephen C. Dimon,, the plaintiff’s, intestate, loaned to the
There are several objections to testimony urged by counsel for the defendant. Upon the trial the plaintiff’s counsel offered to read the testimony of the defendant in relation to this advance of money taken at another trial. This evidence was offered from the . stenographer’s minutes of the trial. There seems to have been no objection to the reading from the minutes rather than calling the stenographer. On the contrary, it was stated that such testimony could be offered on the basis of the stenographer’s minutes and not by calling the witnesses. That stipulation being before the court, ' counsel for the plaintiff offered to read a part of the defendant’s testimony, which was objected to on the ground that the plaintiff in his complaint acknowledges that a loan was made, and that both as an acknowledgment and evidence of said loan the defendant made and entered into a memorandum in writing, and that nothing can be offered by him in contradiction of that -writing. That objection was overruled and we think properly. The evidence offered was evidence of a declaration of the defendant and vras competent as her admission. It related not to the giving of the note, but to the original advance of money, and as the action was based upon the loan as originally made, and not upon the note which was subse
The plaintiff also read the testimony of Thomas Keery, the defendant’s husband, taken upon the trial of another action. This evidence appears to have been read without objection.' After that testimony was read, counsel for the defendant stated: “ Your Honor will allow us the same objection and exception to the reading of the second witness’s testimony as to the first ? ” To this no answer, was made and the trial proceeded. As this testimony was not admissible as an admission of the defendant, if propér objection had been taken in time it would have been incompetent. It was read, however, without objection. The request of the counsel for the defendant, that he should be allowed the same objection to this testimony that he had made to the reading of the testimony of the defendant appears to have been intended for an objection that, as the plaintiff in his complaint had stated that in acknowledgment and as evidence of the loan for $6,000 the defendant had made a memorandum, in writing, that memorandum was the agreement between the parties, and nothing could be offered by plaintiff in contradiction of that writing. The objection, therefore, was to the plaintiff’s offering anything except the written evidence of the agreement between the parties; not an objection that the witness should have been called and sworn as a witness. It appeared, therefore, that the only objection made to the reading of this testimony was that it tended to contradict the written instrument evidenced by the execution of the note and the indorsement thereon, and as the testimony was not offered for the purpose of establishing the execution of the note, nor had any relation to the note, that objection was not available to the defendant.
Another exception that requires notice was the ruling upon the testimony of the defendant’s mother. She was called as a witness, and counsel for the defendant stated: “We propose to show an admission by Mr. Dimon to Mrs. Gray of the writing which has been offered in evidence here as having been given about the time that he said he gave her the money. Hoes your Honor rule that it is competent or not ? ” There was subsequently some conversation
Counsel for the defendant also offered to read the testimony of various. witnesses taken at a former trial of another action between the same parties in support of a defense set up in the 7th paragraph to the answer, which alleged that the plaintiff’s intestate had given to the defendant certain personal property before his death, which included the note in.suit. This was objected to by counsel for the plaintiff upon the ground that the issue and defense referred to in the 7th paragraph of the answer were raised between the parties in another action, and that the same had resulted in a judgment in favor of the administrator against the defendant on this issue, and counsel, therefore, produced the judgment entered in the other action, claiming that it was res adjuclieata, and offered that judgment' in evidence. Upon that statement the objection was sustained, to which 'counsel for the defendant excepted upon the ground that the judgment was not conclusive upon the defendant. As the depositions offered to be read are not part of the record, it is impos
We have come to the conclusion, therefore, that," upon the case as it stood when submitted to the trial judge, there was evidence sufficient to sustain his finding that the plaintiff’s intestate had loaned to the defendant on February 26, 1868, the sum of $6,000, which .she had agreed to repay; that the obligation to repay that loan had not been discharged, and that the plaintiff was entitled to recover.
It follows that the. judgment appealed from should be affirmed, with costs. . .
Van Brunt, P. J., Rumsey, McLaughlin and Hatch, JJ., concurred.
Judgment affirmed, with costs.