Marble v. Towman, 39 N.Y.S. 350

Marble v. Towman

39 N.Y.S. 350 | N.Y. App. Div. | 1896

Per Curiam :

The defendant apppeared upon the return of the summons and answered the complaint, but did not appear upon the adjourned day upon which the trial was held. The plaintiff proved her case, and thus established her right to the judgment appealed from. The Code of Civil Procedure, section 3063, directs that “ The appellate court must render judgment according to the justice of the case, without regard to technical errors or defects which do not affect *614the merits.” The defendant urges technical defects in the replevin papers to which he objected before joining issue, and also that a verified copy of the original hill of sale was received in evidence upon the trial. Ve can give effect to none of these objections without disregarding the rule above quoted, which, since the defendant, after appearing and answering, left the case undefended, we are the less inclined to do.

The cases which hold that, when the defendant makes default, the plaintiff must prove his case by legal evidence, mean evidence which has probative force; that is, evidence of facts tending to show the truth of the complaint, not necessarily primary evidence, because secondary evidence is evidence, and in the absence of objection is admissible. Hearsay testimony, as a general rule, is not evidence of the fact in question, hut only of what some third person said about it. So of opinions ; they do not prove the fact, hut what the witness thought it was. These examples illustrate the cases referred to. This case was established by legal evidence.

The judgment of the County Court should he reversed, with costs, and that of the justice affirmed.

All concurred.

Judgment of County Court reversed, and judgment of Justice’s -Court affirmed, with costs of this appeal and of County Court.