58 Barb. 241 | N.Y. Sup. Ct. | 1870
The only review that can be taken of the trial, in this case, must be as to errors committed by the referee on the trial. Ho error of fact is claimed, upon either side, as to the report upon the account or notes sued upon; and there can be no real complaint upon the merits, upon any fact regarding payments upon the bond, except as to one payment of the amount of $315, on the 15th day of February, 1841. After a thorough review of the evidence in regard to this item, I do not feel justified in reversing, and I think a court of review could not, by any known rule, reverse the judgment upon this finding, for the reason that the evidence is greatly conflicting, and its weight depends almost entirely upon extrinsic circumstances, and the degree of credit to which the witnesses who. testified are entitled, of which a referee, who saw their deportment, on the stand, and who lived in the
The first point of objection by the defendant is to the order of reference made by the special term, on the ground claimed, that the action had been adjudged by the general term to be not a referable action; and that an appeal from a judgment brings up every proceeding in the progress of the action, and therefore that order was here for review. This point is not well taken. This order, if erroneous, should have been corrected by a direct appeal from it, to the general term.
The second objection to the ruling of the referee on the trial was, that the plaintiff moved before the referee to strike out the testimony of a witness, who had been examined upon a commission, to a portion of the direct interrogatories, on the ground that he had not fully and fairly answered the eighteenth cross-interrogatory thereto, and the referee granted the motion. The witness, John r 8. Steward, had been examined by the defendant on interrogatories in relation to other issues between the parties than that of the balance due on the bond and mortgage, and was regarded as an unfriendly witness to the plaintiffs; and in answer to the fourteenth cross-interrogatory, had answered, that he was unfriendly to the administrator, (Terry, the plaintiff;) and in the twelfth, that he had sued the estate, claiming several thousand dollars against them, and had been beaten, after a severely contested law suit, in which the estate had recovered against him nearly $2000. The eighteenth cross-interrogatory of the plaintiff to this witness was in the following words: “ Has the defendant, or any one for him, or in his behalf or otherwise, drawn, prepared, suggested or advised you by language, letter or otherwise, what interrogatory, direct or cross, would, could or might, be put to you on the execu
The next objection raised by the defendant, is to questions allowed by the referee to be put to the witness James Hall, a person in interest in the action, as to what he claimed, and allowed his counsel to claim, on a previous trial in this action, as to certain payments made upon the claims in the case. This objection is not well taken. The case shows that this objection was raised on the defendant’s own cross-examination of the witness, though the case also shows that the defendant objected to the questions. Without any explanation, there is confusion about it that the court cannot solve. The witness was sworn on the part of the plaintiff; then he was cross-examined; then re-examined by the plaintiff; then again the cross-examination was resumed by the defendant, during which these questions now objected to were put; then again reexamined by the plaintiff; then again re-cross-examined by the defendant. If there is a mistake in the case, and this should be the defendant’s witness, (which we cannot know,) then these questions objected to would be put upon a cross-examination, which would be tolerated as a matter of discretion in the referee, as the questions put seem to be to test the memory of the witness. We cannot hold this to be error, be it either way. This applies also to the objection taken to the question at folio 263, of the same character.
The objection to the introduction of the account books of William Stevenson, deceased, I think, under the circumstances, was not error. The defendant had previously been called as a witness in his own behalf, and had testified to an examination of the contents of these books, and
In the controversy, on the trial, as to payments made to the testator by one James Hall, Hall had been sworn as a witness, and in accounting for the amount of money he had received and paid the testator, he testified to having sold his crop of rye in the winter of 1841, at nine shillings and sixpence per bushel. To impair this testimony, the plaintiff had attempted to show the price of rye at that time to be much lower, in the Troy and Albany markets and elsewhere; and for this purpose offered a file of papers, obtained from the Young Men’s Association of Troy, for the years 1840 and 1841, and a Washington county
The case of Lush v. Druse, (4 Wend. 314,) was an action of covenant for rent, payable in wheat. On the trial, a witness was introduced to prove the value of wheat in Albany on the day of the rent becoming due, in four successive years. The witness knew nothing of the price of wheat, of his own knowledge, but testified to the prices in those years as derived by him from the books of large dealers in wheat at Albany. This proof was objected to as insufficient. Savage, Ch. J., held this proof, uncontradicted, to be sufficient. In the case of (Cliquot's Champagne, (3 Wallace, 115,) it was held that printed prices current, obtained from the agent of the manufacturer of wine, or from dealers in the manufactured article generally, which have been prepared and used by the parties furnishing them, in the ordinary course of business, are so far evidence of the value of the articles mentioned in them as that they may be submitted to a jury, as throwing light on the matter, and as some guides to candid men, and for their consideration. These authorities, I think—and they are not the only ones—-justify the referee in receiving the evidence of the prices current, published at the time for public information, and for general purposes, in a public newspaper.
There were some rulings, in the admission of evidence by the referee, which, standing alone, uninfluenced by the effect of other testimony given in the case, might be regarded as erroneous rulings; such, for instance, as the entries in the mortgage book of Daniel Stevenson, deceased, of payments, and of interest accrued upon the bond and mortgage in question. Daniel Stevenson was the original mortgagee of the mortgage in question, and he
The referee also made several errors in favor of the appellant, but they are not before us. TJpon the whole case, I think justice has been done, and that there were no such legal errors committed upon the trial, as to reqiure a reversal of the judgment. It should be affirmed.
Judgment affirmed.
Rosekrans, Potter, Bockes and James, Justices.]