12 N.Y.S. 778 | N.Y. Sup. Ct. | 1890
We think this judgment should be affirmed upon the facts, unless alleged errors in the admission of incompetent evidence materially affecting the issue require a reversal. It was an important question upon the trial-whether a deed, which, it was shown by evidence satisfactory to the referee, embraced the two parcels in question, and was executed and acknowledged by Scott on the 21st day of November, 1885, was delivered to the defendant by Scott. It was shown that on that day Scott and Greer were together in the office of Mr. Frothingham, who, with Mr. Crannell, was also present. A judgment for $23,400 had been recovered against Scott in an action in the supreme-court, and Mr. Frothingham was his counsel with respect to an appeal. Geer was to become one of the sureties upon the undertaking upon appeal. The undertaking was then executed byGreer;Mr. Crannell, who was an attorney and notary public, takingGreer’s acknowledgment. At the same time Crannell, at the request of Scott, drew the deed of the two parcels of land in question, and Scott executed it, and Crannell took his acknowledgment. Greer’s claim was that Scott did this in order to enable Greer to justify as one of his sureties'upon the undertaking. Greer had previously owned the two-parcels of land, and in 1883 had conveyed them to Scott. The defendant Geer was permitted to testify as follows: “I was present when the acknowledgment was taken. Scott, Crannell, and Frothingham were present when I got possession of the paper [deed.] I got possession of it immediately after it was acknowledged. I took it home; had it in my safe.” It is important to-ascertain how much of this testimony was objected to. There is a statement in the case in these words: “It is stipulated that all objections and exceptions, to evidence be considered as taken by all the parties whose interests are antagonistic to that of the party offering the evidence, and that all available objections under sections 829 and 835 were taken, and, when overruled, that-exceptions were taken.” We do not think that that stipulation is available for any purpose on this hearing. In Briggs v. Waldron, 83 N. Y. 582, there-was a statement by defendant’s counsel in these words: “We will have it understood that an exception follows every objection on this trial;” and this was-not dissented from. Yet the court held that this simply entitled the defend
Learned, P. J., concurs. Mayham, J., not acting.