Wilson v. Boasberg, 1 Misc. 436

Wilson v. Boasberg

1 Misc. 436 | Superior Court of Buffalo | 1893

Hatch, J.

The only point pressed upon our consideration, on the oral argument of this case, related to the admissibility of certain evidence. The brief of defendant, however, urges that the verdict is contrary to law and the evidence given. *437As to the latter proposition we are of opinion that the evidence given was sufficient to warrant the verdict rendered. The charge is not returned, and it must, therefore, be assumed that it was unexceptionable, and as there was evidence beyond a mere scintilla we are not able to say that the verdict rendered thereon was unreasonable or that there was an absence of evidence corroborating the witness who took the ring, if that were necessary. The error urged in the reception of evidence arose in this wise: The witness had purchased a diamond ring of a jeweller about twenty-three years before; this ring he pawned to plaintiff; it was stolen from plaintiff’s safe by a young man who sold it to defendant; the particular question at this juncture was its value. Witness was asked : “ Q. What was the amount you paid for the ring ? A. Three hundred and fifty dollars.” Defendant’s attorney, after question and answer, made a general objection, which was overruled by the court, and an exception was taken. No motion was thereafter made to strike out the testimony. We are of opinion that no question is thus presented. In Hangen v. Hachemeister, 114 N. Y. 572, the court, upon a similar state of facts, said: “ The exception is not available here, for the reason that the objection was not made in time, and there was no motion to strike out the evidence taken.”

The evidence was doubtless inadmissible, but had the objection been made in time, or had the grounds been stated the court probably would have excluded it, or as is quite likely, plaintiff would not have insisted upon it. These reasons have been held sufficient to cure the assigned error. Fountain v. Pettee, 38 N. Y. 184; Ward v. Kilpatrick, 85 id. 417; Hoffman v. Corner, 76 id. 121.

No legal error being found, the judgment appealed from is affirmed, with costs.

Judgment affirmed.