38 N.Y. 184 | NY | 1868
Lead Opinion
This was an action of assault and battery. The plaintiff, a collector of wharfage, called at the office of the defendant, to collect a bill for the wharfage of a boiler belonging to the defendant's firm. Words arose between the parties, and the defendant forcibly ejected the plaintiff from the office, throwing him down a flight of steps, and injuring him severely. The jury found a verdict of $750, for the plaintiff. The only exceptions in the case are to rulings of the court on questions of evidence. These exceptions, as presented on the appellant's points, are seven in number, six where defendant's objections were overruled, and one where an objection on the part of the plaintiff was sustained. In the first three cases, no ground of objection is stated, and none appears; in the fourth, the objection was that the question was leading; in the fifth and sixth, the objection was on the ground of irrelevancy; but the evidence elicited tended to show that the defendant and his partners were the owners of the boiler in question, and thus to justify the errand of the plaintiff. In the case of the only remaining exception, the court sustained the plaintiff's objection, to a question put to the defendant tending to show that he did not know, at the time, that the boiler belonged to his firm, and which might properly have been admitted; but the error, if any, of its exclusion, was cured by the subsequent admission of the same evidence when the defendant was subsequently re-examined.
But it is perhaps enough to say, that the exceptions in the case are trivial, and do not call for extended examination.
The judgment should be affirmed. *185
Concurrence Opinion
This is an action of assault and battery, tried before a judge and jury in the Kings county circuit, and the plaintiff recovered a verdict of $750, and which was affirmed by the General Term, on appeal taken by the defendant, and the defendant has appealed to this court from the judgment. The charge of the judge is not contained in the case, and the verdict is fully warranted by the evidence, assuming that the jury believed the plaintiff and his evidence, which it was wholly their province to do if they were impressed with the truthfulness of his evidence. The only questions which can be reviewed in this court are rulings of the judge upon questions of evidence. The plaintiff was a collecter of wharfage of pier No. 35, North river, and called on the defendant, an iron dealer, at his office, 228 Water street, New York, to collect a bill for wharfage of a boiler belonging to the defendant, and spoke to him about the boiler, which it seems the defendant knew nothing about, and some words ensued between the parties as to the ownership of the boiler, and they got so much at issue over that question, that the plaintiff did not present the bill to the defendant before he was ordered to leave. It therefore became very proper for the plaintiff, to explain why he did not make known to the defendant that he came to collect the wharfage on the boiler, and with that view he was asked the question, "Why did you not tell the defendant more of thepurpose that called you there?" To this question, the case says, "the defendant's counsel objected," which objection was overruled by the court, and the defendant's counsel excepted.
There are two answers to this exception. In the first place, the evidence was competent, as tending to show that the plaintiff went there on business, and was lawfully in the defendant's office, and that his omission to communicate to the defendant his business fully, was owing to the reason, that the defendant denied all ownership of the boiler, and they got at issue over that.
The second answer is, there is no ground of objection stated to the evidence. The rule requires the party objecting to the evidence, to communicate to the court and the opposite *186
party, in some form, the grounds of his objection to the evidence, and if he do not, his objection will not avail him on a motion for new trial. This is a just and reasonable rule. It is due to the party offering the evidence, that he should be informed of the ground of objection to the evidence. The party may choose to acquiesce in the incorrectness of the evidence, and withhold the same, if the ground of objection is stated. It is sufficient to say, the rule itself is too well settled to admit of discussion, as will be seen by reference to the cases. (Merrett v. Seaman, 6 Barb. 330; 5 Johns. 467; 8 id. 509; 1 Cow. 622; 6 Hill, 407; 17 Wend. 257; 24 id. 877; 25 id. 437; 1 Denio, 87; 3 id. 114; 2 Hill, 603; 2 Seld. 345; 1 Comst. 83;
There is still a third answer to this objection. The defendant himself afterward went fully into it, and cured any objection there might be. (Morgan v. Reid, 7 Abb. 115.) The plaintiff's counsel asked the plaintiff the following question: "Were you, at the time, the collector of the wharfage of pier No. 35, North river?" and to this question the counsel for the defendant objected, by simply stating he objected to the evidence. This objection was properly overruled, for the reasons already stated to the former objection, and besides, it was entirely competent for the plaintiff to state his pursuit or business. This furnishes an answer to the objection taken in folio 25. The question was, "What was your business?" and the defendant simply objected to the evidence, without stating any reason or grounds of objection.
The other objections are all equally frivolous, and the objections are all taken in the same form, and none of them are well taken, and the judgment should be affirmed.
Judgment affirmed. *187