3 Barb. 119 | N.Y. Sup. Ct. | 1848
By the Court,
The report of referees, like the verdict of a jury, is only to be set aside, where the hading is clearly against the weight of evidence, or where, upon the trial, some rule of evidence or principle of law has been violated. The plaintiff complains, in the first instance, that the referees improperly received evidence of a set-off on the part of the defendant ; he having been precluded from making a set-off by a judge’s order, for his neglect to furnish a hill of particulars. We do not understand, however, that the evidence of work and services performed by James Brown (the defendant’s testator) on the farm — and while living in the family of the plaintiff’s intestate, Stephen Broum — was offered with a view to make out an indebtedness for such work and services; but with a view of showing that he earned his living as he went along, and contracted no debt for board and lodging, while he lived there. There being no proof of an express contract to pay for hoard, and the plaintiff’s case proceeding entirely on the ground of an implied liability for a quantum meruit, it was certainly proper for the defendant to show that the plaintiff’s demand was com
The next objection to be noticed is, that the referees allowed inquiries to be made respecting the pecuniary circumstances of the plaintiff’s intestate, Stephen Brown, and of the defendant’? testator, James Brown. The result of the inquiry on the cross-examination of the plaintiff’s witness Osborn, showed a stronger probability that James was to pay for his board while livjng at Stephen’s, than that his services were to be an equivalent, and that the one was to compensate the other. The inquiry pherer fore, if improper, has not harmed the plaintiff, and furnishes no reason for setting aside the report. But such inquiries were not improper- — considering the nature of the plaintiff’s demand, its origin and Jong standing, and how it was attempted to be supported by oral testimony alone. The same may be said with respect to the objections taken on the cross-examination of David Yan Vores, in relation to old Abraham Brown’s means or resources. It was sought to charge James Brown with an original, and not a collateral liability to pay for his father’s board and maintenance; and this by circumstantial rather than by direct and positive proof of a contract. And to rebut this, such facts as were attempted to be elicited were clearly admissible. The referees could better judge of the probability (in the absence of other evidence) of James’ original undertaking to support his father by engaging boapd for him at Stephen Brown’s, when they had evidence before them-of the old man’s acts and declarations in regard to his own ability -or inability to pay for himself. Hence it' would seem that the inquiries made of David Yan Yores on his cross-examination, and of Benjamin Sill — a witness on the part of the defendant— as to the father’s property and mopeyed means, were not improper.
The next point is ip regard to counsel’s minutes of what Nathaniel Yan Yores, a witness for the plaintiff before the referees, had testified on a former occasion before the surrogate, pnd which minutes were now introduced for the purpose of showing a contradiction in tbs statements of the witness, and
With respect to the first objection, all that is required of a Witness when testifying from a note or memorandum, is, that he should state it was made by him at or about the time of the occurrence which it speaks of, and that he intended it to be correct, and believes it to be so. As to the second and third objections, the general rule and practice is for a witness to speak from his recollection of the facts, after having referred to his notes or memorandum, and brought the facts fresh into his mind again. In this instance, however, the witness (Mr. T.) seems to have been unable to do so. He could only state what he did of Yan Yores’ former testimony, from his minutes, not from any remembrance or recollection which he had of it. Was he at liberty to do this, within any acknowledged rule of evidence ? It appears to be admitted by all writers on evidence, that counsel’s or even a judge’s minutes of a trial, are not, per se, evidence on another trial. They can only be used or re-* sorted to as memoranda to refresh the memory. (1 Cowen & Hill’s Notes, 579. 1 Binney, 108.) And in using notes or memoranda, it is laid down in the text of Phillipps (1 Phil. Ev. 289) that if the witness cannot, from recollection, speak to the fact any further than as finding it stated in a written entry, his testimony will amount to nothing. There is a departure from the rule in a number of the English and American cases
A point has been made on the argument, of the referees’ refusal to hear any further evidence either against or in support of the characters of Van Vores and Austin, two of the plaintiff’s witnesses. Several witnesses had been sworn and examined on both sides touching their characters for truth, when the referees interposed. It does not appear that either party objected at the time, to their refusal to hear further witnesses in support of, or against, the character of the two men;
We have not been inattentive to all the facts and circumstances which could be urged in favor of a claim of this character; but we cannot fail to perceive that there is much in the case to show, after the lapse of so many years, and the non-assertion of a legal right, if one ever existed, that the claim for the support of the old man-, ás well as for the board of the testator James Brown, addressed itself rather to his testamentary disposition and bounty, than to any legal obligation he was under; and that this suit has grown out of a family disappointment, which however undeserved or unmerited, is not a ground on which to base a legal recovery. Though there was room for a difference of opinion among the referees, and although a jury might be induced to find a verdict the other way, if the cause should be tried again, yet such a possibility does -not justify the court in setting aside the report.
Motion denied.
See Nolton v. Moses, ante, p. 31.