| N.Y. App. Term. | Jan 15, 1899
This action was brought by the plaintiff to recover for services performed under an alleged contract with' the defendant, by which he was constituted an agent of the latter for the purpose of selling certain real estate and collecting payments made upon such sales by the purchasers. The answer was a general denial, and the principal question which was litigated was the existence of the contract of employment alleged in the complaint. The case was tried with a jury, and a verdict was rendered in favor of the plaintiff. From the judgment entered
The defendant asks us to review the facts. We are, however, without the faculty to do so. While it is true that at the close of the plaintiff’s case a motion was made to dismiss the complaint, which was denied and the denial excepted to, still no motion was made at the close of the entire case either to dismiss or to direct a verdict in favor of the defendant. The rule is too well settled to admit of any further discussion that, under such circumstances, we are powerless to pass either upon the weight of the evidence or upon the question as to whether there was any evidence to support the verdict. Pollock v. Penn. Iron W. Co., 157 N.Y. 699" court="NY" date_filed="1898-11-22" href="https://app.midpage.ai/document/pollock-v--pennsylvania-iron-works-company-3623625?utm_source=webapp" opinion_id="3623625">157 N. Y. 699, In that case the court says: “ The legal effect of the omission of the defendant at the close of the testimony to move either for a dismissal of the complaint or the direction of a verdict in its favor was to consent to the submission of the case to the jury. We are, therefore, prevented-from considering whether the defendant was entitled to judgment.”
It appears that after the verdict had been rendered, the defendant made a motion for a new trial on the judge’s minutes, which motion was denied. No order, however, was entered upon this decision, but the defendant’s counsel seems to have contented himself with simply taking an exception thereto. An exception, however, will not lie to such a ruling. The motion is not a proceeding in the course of the trial, but from the very nature of the case must be made after the trial has ended, and it is only to the rulings of the court made in the course of the trial that exceptions may be taken. But even if there had been an order entered upon the decision, the plaintiff could have obtained no relief here by reason of that fact, as no appeal will lie to this court from such an order, the determination of the General Term being in such a case conclusive.
We are, therefore, confined simply to a consideration of the exceptions which have been taken to the rulings of the trial court upon questions of evidence. There are no exceptions to the judge’s charge. Indeed, the charge is not printed in the record, and we must, therefore, presume that the case was correctly submitted to the jury by the trial justice. The defendant in the course of the trial called a witness for the purpose of impeaching the character, as well as the reputation for truth and veracity, of
As has been already stated, an effort was also made through the same witness to prove that the reputation of the plaintiff for truth and veracity was bad. He was asked whether he knew Meyer’s reputation for truth and veracity, to which he replied that he did. He was further asked whether he had talked with any person about it, to which he responded in the affirmative, and mentioned one such person who resided in the city of Brooklyn, whom he had seen the night before, and one other person with whom he had spoken about two years ago on the subject, who lived at that time in Hoboken. It appears from the testimony that the plaintiff was a resident of the latter place. Upon this the following questions were asked by counsel for the defendant: “ Q. What did these people say of Meyer’s reputation for truth and veracity? ” “ Q. What did they say about his truthfulness? ” “ Q. From what these people say, what do you say his reputation is for truth and veracity? ” “ Q. From what these people say, would you believe Meyer under oath? ” Each of these
We think that the ruling of the court was right. The proof that was offered was not competent for the purpose of establishing a general reputation for truth and veracity in the community where the plaintiff was known. All that the witness apparently could testify to was that he had derived some information upon the subject from but one person who resided in the place where the plaintiff lived, and similar information from another person who resided elsewhere, and who, so far as it appears, had no knowledge or information whatsoever upon the subject. Furthermore, whatever might have been the capacity of the two persons referred to, to speak to the question, it is perfectly plain that they should have been subpoenaed and examined. It was obvious that the witness who was examined on the trial had no knowledge derived by himself from association with the people in the community in which the plaintiff resided as to what the plaintiff’s reputation was, and the questions that were put to him amounted at best simply to an inquiry as to what the knowledge or information of' two persons whose names were mentioned by him was upon the subject. This was plainly incompetent.
A similar question seems to have been considered in the case-of Curtiss v. Fay, 37 Barb. 64" court="N.Y. Sup. Ct." date_filed="1862-03-03" href="https://app.midpage.ai/document/curtis-v-fay-5460355?utm_source=webapp" opinion_id="5460355">37 Barb. 64, 69. In that case the court says (p. 69): “ The witness Pritchard was not qualified to testify in relation to Jones’ character or reputation. He did not know, himself, anything about Jones’ reputation. All he could testify on the-subject of his reputation was what some persons at Geneva, whom he did not know, told him it was. An impeaching or sustaining-witness is not to speak of the reputation unless he knows it, and such knowledge must be founded upon an acquaintance and intercourse with the neighbors and acquaintances of the individual whose character is in question, and that intercourse must be of some length of time — sufficient, at least, to enable him to gather the general estimation in which he is held in the community where he resides. The objection to Pritchard’s evidence is that of necessity he could only testify what others told him of Jones’ reputation, not what he knew of it himself — which would be nothing but reputation of reputation. 1 Greenl. Ev., § 461; Douglass v. Tousey, 2 Wend. 352" court="N.Y. Sup. Ct." date_filed="1829-05-15" href="https://app.midpage.ai/document/douglass-v-tousey-5513075?utm_source=webapp" opinion_id="5513075">2 Wend. 352.”
We have considered the other exceptions in the case, but are of the opinion that they do not present grounds for a reversal, and are
Gildersleeve and Giegerich, JJ., concur.
Judgment affirmed, with costs.