18 F. 713 | U.S. Circuit Court for the District of Southern New York | 1883
The master erroneously excluded the declarations of Pachner to his workmen, made while distributing materials to them to be worked into caps, tending to indicate to whom the materials belonged, and for whom the caps were to be made. They were competent as part of the res gestee, and, like the marks upon the different lots, indicating to whom the lots belonged, fall within the category of verbal facts. The witnesses should have been permitted to give their estimate of the number of caps made for the defendants, so far as such an estimate could be founded on the personal observation of the witnesses, and upon the knowledge acquired by them from directions and instructions given to them while making the caps for the various customers of their employer.
The master erroneously sustained the objections to interrogatories 20, 28, 34, 38, 47, 49, 50, 51, and 52, propounded to the witness Henry King, and to interrogatories 17, 21, 44, 46, 65, 68, 72, 75, 76, and 81, propounded to Aaron Grant. While some of these interrogatories do not seem to have been of much importance, others were, and the general result of the master’s rulings has been to deprive defendants of testimony which was clearly competent and material. It is for the master to determine what weight should be given to this testimony when it is in the case. It may be that his conclusions will not be affected by it, but upon this review of his findings it cannot be determined that they were not influenced by the absence of the evidence which the defendants sought to introduce.
The portions of the affidavit of William Wronke, Alice Wronke, and Saill Wolff excluded, should also have been received, and the objections on the part of the defendants to portions of the affidavit of Samuel Adams relating to the statements of Alice Wronke, and as to the reputation of Wronke and his wife for veracity, should have been sustained. The ease is referred back to the master, with directions to permit the defendants to re-examine the witnesses King and Grant de novo, and to receive the portions of the affidavits of Wronke and his wife, and Saill Wolff, which were excluded, and to exclude the portion of the affidavit of Samuel Adams which was admitted, and thereupon to reconsider the proofs and report his conclusions.