Johnson Service Co. v. Maclernon

127 N.Y.S. 431 | N.Y. App. Div. | 1911

Scott, J.:

Appeal by plaintiff from a judgment entered upon a verdict and from an order denying a motion for a new trial.

The action. is for moneys alleged to have been embezzled by' defendant from plaintiff for whom he was office manager. To prove the allegation's of the complaint it became of vital importance to plaintiff to show that a large number of postal cards, apparently signed by workmen in plaintiff’s employ, were in fact in the handwriting of defendant. To. this end plaintiff called a well-known handwriting expert who testified that he had compared the disputed postal cards with papers admitted by defendant to be in his own handwriting,- and that in his opinion all were written in the same hand. The witness was then asked to state the reasons for his opinion. An objection to this question was sustained and the plaintiff duly excepted. This was error. It is a rule of general acceptance that an expert may always, if called upon, give the reasons for his opinion. “ Whenever the opinion of any living person is deemed to be relevant, the grounds on which such opinion is based are also deemed to be relevant.” (Chase’s Stephen’s Digest [2d ed.], 156.) “ On direct examination, the witness may and, if required, must point out his grounds for belief in the identity of the handwriting, on the principle already considered (ante, § 655). Without such a reenforcement of testimony the opinions of experts would usually involve

little more than a counting of the numbers on either side.” (3 Wigmore Ev. § 2014.) In this State the practice of permitting handwriting experts to give the reason for their opinion and even to illustrate upon a blackboard has been distinctly approved. (McKay v. Lasher, 121 N. Y. 477,483.) The reasons for the expert’s opinion, if he had been permitted to give them, might and probably would . have added great force to his testimony, for the mere expression of opinion standing alone has little probative force. (Matter of Koch, 33 Misc. Rep. 153.) We cannot accede to the suggestions made on behalf of defendant, that plaintiff’s counsel should have persisted in his efforts to draw from the witness the reasons which led to his opinion.' The question as to the admissibility of the evidence was squarely presented, and to aslc the same question in different forms was unnecessary and would have been indecorous. The court was led, by acceding to a request from defendant’s counsel, to apply to this case the stringent rules of the criminal law as to the degree of proof which the plaintiff was required to make in order to obtain a favorable verdict. Although the defendant was charged with a criminal act, the action was a civil one, and all that. was required of plaintiff was that it should' establish its case by a fair preponderance of evidence.

For these errors the judgment and order appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Dowling, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.