Wiggins v. Wallace

19 Barb. 338 | N.Y. Sup. Ct. | 1855

By the Court,

Welles, J.

We think the justice erred in sustaining the objection by the plaintiffs to the following question put to the witness Alonzo Grillett, viz: “ What is the proper way to put the .tile in the kiln for burning?” The objection was on the ground that the witness had not shown himself to have sufficient experience to give an opinion on the subject. He had testified that he was a brick and tile maker; that he had been making tile two seasons, and brick nineteen years. It is said that the justice must be the judge whether the witness is competent to testify as an expert; so he must; and yet, if he misjudges, it is as much an error as if he misjudges on any other question. It was not a question of discretion for the justice, where his judgment is conclusive. We are clearly of the opinion that the witness in this case was qualified to answer the question put to him. The same witness was asked the following question, viz: “ What would be the effect of these tile lying flat-wise, instead of on end, upon the bum ?” The question was objected to upon the same grounds, and the objection was sustained by the justice. In this we also think he erred. Several other similar rulings in relation to questions put to other witnesses, were made by the justice, in most of which we think he erred. It should be stated that other evidence had been given touching the manner in which the tile had been placed in the kiln by the plaintiffs for burning, showing the pertinency of the above questions to the witnesses.

[Monroe General Term, March 5, 1855.

Johnson, Welles and T. R. Strong, Justices.]

For these reasons the judgment of the county court, and that • of the justice, should be reversed.

Ordered accordingly.