66 N.Y.S. 817 | 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 defendant the sum of $6,000; that on March 1, 1889, the defendant executed and delivered to said Dimon her promissory note in writing, whereby she agreed to pay to Stephen C. Dimon, on demand, the sum of $6,000, with interest, at and after the rate of 4J per cent, per annum; that at the time this note was executed and delivered, Dimon, plaintiff’s intestate, wrote upon the same sheet of paper upon which the note was written the following words: “At my death the above note becomes null and void. Stephen C. Dimon;” that during the lifetime of said Dimon, to and including May 14, 1892, the defendant paid the interest upon the loan at the rate of 4-¿ per cent, per annum, but that no part of 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 stenogra: pher. On the contrary, it was stated that such testimony could- be
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. Does your honor rule that it is competent or not?” There was subsequently some conversation between counsel for the defendant and the court as to this testimony, and, while there does not seem to have been any ruling of the court
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 seventh 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 seventh paragraph of the answer were raised between the parties in another actipn, 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 adjudicata, 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 impossible to say that they would have been relevant to this defense, and, as the judgment roll is not a part of the record, it is impossible to say whether that judgment is a bar to this defense. In the condition of the record, this exception is not available upon this appeal.
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, 1888, 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. All concur.