18 Misc. 243 | N.Y. App. Term. | 1896
The. action was by the-plaintiff as assignee’ of Mitchell L. Erlanger, an attorney át. law, to recover $99 for two-items; one for $60; disbursements incurred in' searching a title,
The answer was a general denial" with a plea of payment, and counterclaim for $250 damages, by reason of the gross negligence of the plaintiff’s assignor, by which the defendant was injured to that amount.
On July 24, 1895, the defendant employed Hr. Erlanger to search the title of five certain premises in East One Hundred and Thirty-sixth street, which the defendant on that ’ day purchased for $60,000 from one Jacob Rieser. Before the. contract of purchase was- signed, Hr. Erlanger inquired of Hr. Rieser and his attorney as to the various incumbrances on the property, and when these were ascertained the defendant determined to purchase the same subject to five first mortgages aggregating $48,000, by paying $1,500 in cash down, and $10,500 at the time of the execution of the deed. A contract of purchase was thereupon executed and $1,500 paid on account of the purchase price. Two checks were given to the order of Rieser, one for $900 and the other for $600. The latter was for commissions due to the brokers, and it was indorsed over to Hr. Erlanger, who retained $250 out of the check ón account of fees, the understanding being that this sum should pay him for examining the title, and the defendant should pay the disbursements. The balance of the $600, $350, was paid to the brokers for their commission."
A few days after the contract was signed it was discovered that foreclosure.proceedings were pending, and Hr. Erlanger advised, the defendant that he could not on that account be compelled to take title. The defendant, however, insisted upon taking title, and paid $600 costs to stop the foreclosure, and this sum was credited on the purchase price, making the cash payment on.the contract $2,100 instead of $1,500. On- account of this foreclosure, unpaid taxes and the like the title, could not go through in the manner originally contemplated., After some negotiation certain deductions were allowed to the defendant and advances made to him, and thus the third mortgage was reduced from $4,400 to $3,300. Hrs. Rieser, the vendor’s wife, contributed $350 in cash and conveyed two pieces of property in Bedford Park, one of which the defendant sold, receiving for his equity, $100. These allowances together with the rents which the defendant had collected, finally enabled the sale to be completed without any substantial loss to the defendant.
The negligence charged against Erlanger is that prior to the execution of the contract he should have obtained an affidavit from the vendor as to the actual condition of the incumbrances upon the property, or should have advised that the $1,500 paid on the contract be deposited in some trust company to await the result of the examination of the title.
The vendor was not induced, by Erlanger to sell the property to the defendant, but was taken to Erlanger’s office, by the latter, and Erlanger had the right to assume that he was pecuniarily able as .well as willing to carry out his contract, this being the legal presumption. Hart v. Hoffman, 44 How. Pr. 168; Cook v. Kroemeke, 4 Daly, 268; Goss v. Broom, 31 Minn. 484. The question arises as to how far we may take judicial noticé of an attorney’s duty in matters of this kind.
The Court of Appeals in Bookman v. R. R. Co., 137 N. Y. at p. 305, held that “ the nature and operation of the elevated railroads are so notorious that the courts may assume to be acquainted with them, and from the numerous cases which have come before them, they may take judicial knowledge that they increase the traffic in the wide avenues largely devoted to business purposes and thus generally promote and increase the business there.” In Frace v. R. R. Co., 143 N. Y. 182, it was held that the courts may take judicial notice of the fact that certain spark arresters are in common use upon engines or locomotives. And in Anderson v. Blood, 86 Hun, at p. 247, it was held that the courts may take judicial notice that it is not an uncommon occurrence for a party to make a contract for the- purchase of real estate, expecting to resell the same at a profit before he is compelled to complete under his contract.
From the frequency with which contracts for the purchase of real estate have come before the courts we may, upon the principles of these cases, take judicial, notice of the fact that it is not usual upon the execution of a contract to take an affidavit from the vendor, or to deposit the earnest money in a trust company, the ownership of property the equitable title to which is at once transferred to the vendee upon the making of the contract being generally sufficient
The plaintiff called two attorneys, who testified that there was no Such custom as asserted by the- defendant. They were then interrogated as to whether certain conditions would be evidence of negligence, and testified under objection and exception • "that they would not. . The questions were improper, as calling for a conclusion of law, which the court, and not the witnesses, was to decide; Crofut v. Brooklyn Ferry Co., 36 Barb. 201, hut the "answer in no manner prejudiced the defendant, for there was no evidence in the case establishing negligence, and the testimony objected to was so immaterial that its admission constitutes nothing more nor less than a harmless error having no effect whatever on the result. Van Epps v. Harnes, 88 Hun, 229; Prior v. Flagler, 13 Misc. Rep. 115; Kenworthy v. Sanford, id. 271; Tenney v. Berger, 93 N. Y. 524; Loder v. Whelpley, 111 id. at p. 247; Fay v. Muhlker, 1 Misc. Rep. at p. 324.
While Erlanger- was on the stand, as a witness, the defendant Undertook to show by him that" the assignment to the plaintiff was-without consideration, and that he was still interested in" the claim. The assignment was in writing, under seal, duly acknowledged on April 17, 1896. Its object is immaterial. Gardner v. Barden, 34 N. Y. 433. It was good though riot on any consideration (Hays v. Hathorn, 74 N. Y. 486), and a defendant cannot question .the consideration (Stone v. Frost, 61 N. Y. 614); and if a plaintiff has a valid transfer as against his assignor and holds the legal title to the-demand, the defendant cannot inquire further. Sheridan v. Mayor, 68 N. Y. 30. Where one receives a noté, agreeing to collect it at his own expense and to pay a sum to a third person when it . is "collected, he is the real party in interest. Eaton v. Alger, 47 N. Y. 345.
But the defendant says this was not Ms object in asking the questions; that he intended to show that Erlanger was still inter
In the present case Erlanger was charged with transferring a claim • that had no existence, and with gross negligence as well, thereby impugning his integrity and reflecting upon his professional character. The issue thus raised by the defendant made Erlanger more interested in the ultimate result of the action than his assignee, the plaintiff, who could be affected only by the loss of- the small amount involved; ■ The question whether Erlanger received $1 or $60 for. the demand assigned could not have affected his credibility in view of the facts. Truthfulness can hardly he graduated on such scales. While interest may affect the weight to be given to testimony, and the extent of interest whenever material become the subject of inquiry, it was clearly irrelevant in the form •presented here. Erlanger’s interest appears in every line of the testimony, .and it was impossible to show by the questions propounded. to him and overruled by the justice that it was greater than already appeared; unless the effort was to show that he was not the real party in interest, and that was not its purpose, that defense not having been interposed.
A trial court has a discretion (depending on circumstances) in' determining how far the cross-examination to affect credibility shall proceed, and the decision thereon is -not the subject of review except in cases of plain abuse and injustice. Peel v. Kern, 6 Hun, 298; Allen v. Bodine, 6 Barb. 383; Uline v. R. R. Co., 79 N. Y. at p. 181; Smith v. Longmire, 15 Week. Dig. 353; Baylies’ Tr. Pr. 178. There was no injustice or abuse in the rulings of which the appellant complains, and we are directed “ to render-judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits.” Code § 3063, made applicable to District Court appeals by section 1438 of Consol. Act; Marble v. Towman, 5 App. Div. 613.
In Chapin v. Hollister, 7 Lans. 456, 457, the court said: “ There was no error in overruling the question put to the witness as to what' the plaintiff gave him for the claim, and the other questions as to the consideration paid by the plaintiff for the cause of action. The assignment was in writing and expressed value received, which was
In Arend v. Liverpool, etc., Co., 6 Lans. 457; affirmed, 53 N. Y. 606, the court said: “ The importer of the cask of wine, after . learning that the defendants, had suffered a loss of the wine, assigned his claim against the defendants to the plaintiff, who brought the action. The assignor was asked, on cross-examination, what he sold it for to the plaintiff. It was insisted that it would tend to show bias and interest in the witness; the price for which the claim sold was immaterial, and might tend to prejudice the mind of the jury. The assignor had no legal claim against his assignee in respect to the price. Interest or bias does not disqualify a witness. It may be taken into consideration in weighing the value of evidence; but there would be no legitimate inference as to interest or bias against the witness on account of the price.”
In King v. R. R. Co., 72 N. Y. 607, one of the plaintiff’s attorneys was called as a witness in his behalf, and gave material testimony. Hpon cross-examination, he testified that his compensation depended in some degree upon the result of the action. He was then asked “ to what extent? ” This was objected to, and objection sustained. Held, no error; that the extent of a cross-examination upon a collateral issue as to the credibility of the witness is in the discretion of the court, and its holding is' not the subject of review unless there is an abuse of discretion.
In Davidson v. Miner, 9 How. Pr. 524 — a case which was tried in 1854, when an assignor could be a witness, but. a party could not — it appeared that one Davis had assigned his demand
The codifiers in proposing the insertion in the Code of 1848 of sections' 351 and. 352, abolishing interest as a ground for excluding witnesses, Said: “ The * * * rule which excludes a witness who has an interest in the event of the action *. * * appears to rest upon a principle altogether unsound; that is,, that
The opinion of the codifiers presents a powerful argument in answer to the defendant’s objection'that the value of the testimony given by the assignor, amember of the learned profession of the law, must be measured in dollars and cents, according to the pecuniary interest which he has in.an assigned claim of $60, for the exclusion of such testimony sought to be introduced for this purpose presents one of the alleged errors upon which the defendant insists the judgment in favor -of the plaintiff must be reversed. We cannot subscribe* to any such view. It would assume that every assignor, when a witness has a price at which truth departs, a contention unworthy of the attention we have given it.
The case was tried upon conflicting evidence, and the justice, as he had the right to do, believed the assignor who was-interested, in preference to the defendant, who was also interested. The justice saw the witnesses, observed their manner of testifying, and aided by the inherent probabilities of the situation, was best qualified to judge of their credibility. The case comes within the rule laid down in Baird v. Mayor, 96 N. Y. 567, 577 as to the effect which
In finding for the plaintiff for the performance of the work respecting which the negligence was charged, the justice necessarily decided that the counterclaim founded on such alleged negligence was untenable. Gates v. Preston, 41 N. Y. 113; Pray v. Hegeman, 98 id. at p. 358. Consequently the counterclaim was properly dismissed.
The evidence sustains- the recovery, the exceptions are without merit, and the judgment must be affirmed, with costs.
.Daly, P. J., and Bischoef, J., concur.
Judgment affirmed, with costs.