121 N.Y.S. 173 | N.Y. App. Div. | 1910
There is no'merit in the appeal from the order allowing plaintiff to amend the complaint by inserting the name of Maria Ptister as a party plaintiff and allowing the pleading otherwise to stand' as served. During the progress of the trial counsel f.or the defendant stated to the court that he .had been informed that the plaintiff had
The action is brought to recover on a check for $6,990, bearing date October 26, 1907, and drawn by the deceased, John P. Heins, to the order of .the plaintiff, George Pfister, on the Fidelity Bank. It was protested on the thirtieth of the same month. The answer put in issue the allegations of the complaint to the effect that the check was made by the decedent and delivered to the plaintiff for value, and alleged, in effect, that the decedent was of unsound mind and incompetent to make the check and received no consideration therefor; that it was wrongfully and fraudulently obtained from him in an attempt to sell to him a saloon business at Ho. 1399 Fifth avenue, borough of Manhattan, Hew York, which was absolutely worthless, advantage having been taken of his unsoundness of mind and inability to understand and transact business ; that the plaintiff, acting in collusion with one Schultz and the officers and employees of the Bernheimer-Schwartz Pilsener Brewing Company, obtained the check in an attempt to defraud the decedent by taking advantage of his mental infirmity and trust and confidence in said Schultz
Upon the trial the plaintiff introduced in evidence thé check and
The learned trial court, after receiving this evidence with respect to the execution of the papers at the office of the brewing company, granted a motion made by counsel for the defendant, to strike out as being incompetent under section 829 of the Code of Civil Procedure, and the court made a general ruling striking out all of the testimony of the three witnesses relating to personal transactions with the decedent. It is not an easy task to determine on the appeal in view of this ruling what part of the testimony of these witnesses was stricken out, and it is evident that the. jurors'could not have known. The testimony apparently has all been included in' the record before ns. The appeal does not bring up for review the ruling of the court in striking out the testimony, for it is taken
The learned trial court -submitted to the jury only the question of the competency of the decedent to -purchase the property and thereby, in effect, resolved all other questions in favor of the plaintiff. Counsel for the appellant duly excepted to the various rulings of the court, confining the issue to be submitted to the jury to the question of insanity. A sharp issue was presented for the determination of the jury on conflicting evidence with respect to the competency of the decedent to know and'understand the nature of his act in purchasing this property. The jury may well have considered on this question , the testimony which the court str.ti.ck out. On the issue of insanity a lay witness was permitted, over objection' and exception duly taken by appellant, to express his opinion, not as to whether certain acts of the decedent, related by him upon the stand, impressed him as rational or irrational, but as to whether the decedent was rational or irrational.
It follows, therefore, that the order with respect to bringing in Maria Pfister as a party plaintiff should be affirmed, and that the judgment and other order should be reversed and a new trial granted, with costs to appellant to abide the event.
Ingraham, Clarke, Soott and Miller, JJ., concurred. .
Judgment and order of March 23, 1909, reversed, new trial ordered, costs to appellant to abide event, and order of February 9, 1909, affirmed..