Smith v. Kerr

1 Barb. 155 | N.Y. Sup. Ct. | 1847

By the Court.

The only objection to the ruling of the circuit judge, as to the admissibility of evidence, which we esteem "worthy of notice, was taken during the examination of the witness Robinson. After he had testified to an attempt made by the parties to arbitrate, he was asked by the defendant’s counsel, whether the defendant did not say, during the negotiations to effect an arbitration, that he had satisfied the plaintiff by writing to his brother. This was objected to by the plaintiff’s counsel, but the court allowed the question to be put, and the witness answered, that the defendant claimed during those negotiations that he had satisfied the plaintiff by writing to his brother, William Ken, and exculpating the plaintiff, which was all he desired. This does not appear to have been competent evidence ; and its reception might be a ground for ordering a new trial, under other circumstances. But the question arises on a case, and if this evidence, although objectionable, could not have materially influenced the jury in arriving at their verdict, a new trial ought not to be granted for this cause. It is true, that the evidence tended to prove one ground of the defence, to wit, accord and satisfaction. But the facts which it was claimed constituted that branch of the defence were already made out by other evidence, and there was no controversy as to those facts.

It was clearly proved, that on one occasion when the parties were together, the defendant said he was sorry for what had occurred, and would do any thing in his power for the plaintiff. To which the plaintiff replied, that all he wished was that the defendant would write to his brother, William Kerr, in Albany; and it is proved that a letter had been so written by the defendant, by which he entirely exculpated the plaintiff. As to this, there was no controversy in point of fact, and the objectionable evidence was merely cumulative upon a point of fact which was clearly established before. It could not have affected the finding of the jury as to the point of fact to which it was directed, and the verdict ought not to be disturbed for this cause.

The charge of the circuit judge was substantially correct. It does not appear from (he evidence, that any words imputing a ci;ime to the plaintiff, were uttered by the defendant in the presence of any persons except the two police officers with whom the plaintiff was in communication, for the purpose of detecting a crime. Therefore that portion of the judge’s charge in which he stated that the defendant would not be liable to this action for making the statement to police officers, although done in the presence and hearing of others, could not, even if erroneous, have had any material influence upon the decision of the jury.

New trial denied.