McCarthy v. Gallagher — 4 Misc. 188

Majority

p. 188

McCarthy v. Gallagher.

(New York Common Pleas

General Term,

June, 1893.)

Headnote

The statement in. an appeal book that: “The foregoing case on appeal contains all the testimony taken on the trial of this action,” is not an equivalent of the statement that the case contains all the evidence taken on the trial, and under the former statement the facts are not brought before the appellate court.

The judgment rendered in an action to foreclose a mechanic’s lien will not be reversed merely because irrelevant matter was received in evidence.

In an action to foreclose a mechanic’s lien the defendant owner testified that he had frequently called the plaintiff’s attention to the fact that he was delaying the work and in consequence claimed that he had lost rent, and he was asked “How much?” Held] that as no proper basis had been laid for it, and defendant had not attempted to precede it or follow it up by laying a proper basis for it, an objection to the question as incompetent, immaterial and irrelevant was properly sustained.

Appeal from a judgment of the General Term of the City Court affirming a judgment entered on the direction of a verdict at trial term.

H. A. Bra/rm, for defendant (appellant).

Ed/wa/rd W. S. Johnston, for plaintiff (respondent).

This action was brought to foreclose a mechanic’s lien for a balance due under a building contract "and for extra work, and resulted in a judgment in favor of the plaintiff-respondent. There is no statement in the appeal book that the case contains all the evidence taken on the trial, but instead of that, there appears the following : “ The foregoing case on appeal contains all the testimony taken on the trial of this action.” It has been repeatedly decided of late that the latter of these statements is not the equivalent of the former, and that under such a statement, the facts are not brought before the court, even at General Term, .for review. Hyman v. Friedman, 45 N. Y. St. Repr. 636 ; Aldridge v. Aldridge, 120 N. Y. 614 ; Upington v. Pooler, 47 N. Y. St. Repr. 30 , 34; Halpin v. P. Ins. Co., 118 N. Y. 165 ; Brayton v. Sherman, 28 N. Y. St. Repr. 854 ; Porter v. Smith, 107

p. 189

N. Y. 531 ; Claflin v. Flack, 36 N. Y. St. Repr. 728 . And it is, therefore, unnecessary to go over this ground again., But it may he proper to remark that the case under consideration is an ample justification of the rule established, for it appears from the return that Exhibits Nos. 1, 4, 8, 12 and 14, were introduced in evidence, but are not printed in the appeal book. Notwithstanding this omission, the court below did review all the questions of fact involved in the case and found there was “ ample evidence to sustain his (the court’s) findings,” among which was the finding that the plaintiff had duly performed for the defendant the work, and furnished the materials provided for in the contract in all respects on his part. This disposes of the appellant’s contention that the plaintiff was bound to show performance on his part before he could recover in the action. The contention that he was bound to do it to the satisfaction of the defendant, cannot be sustained in view of the findings of fact in this case. Besides, it may be remarked, that the satisfaction contemplated by law must be a reasonable one, and not a mere whim, as it appears to have been in this case.

The only questions left for review, therefore, are those arising on the exceptions taken, and they are but two or thrée in number. A witness, an expert paper hanger, having testified he went, in company with the plaintiff, after the filing of his lien, to the premises in question in order to examine the character and quality of the work done and the materials furnished pursuant to the contract, testified that he made an effort to examine the inside, and was then asked the question for what reason did he not examine it (the inside). This was objected to as irrelevant and immaterial, the objection was overruled and exception taken. This objection in no manner pointed out an error, if any, in the question. The testimony was, in oui; judgment, both relevant and material as showing the good faith of the plaintiff and the motives actuating the defendant in his defense. But even if the Question ve» ■ irrelevant it could by no possibility have injured the deienaant, and as this was in effect an action in equity, the judgment

p. 190

would not be reversed merely because irrelevant matter was admitted.

The defendant had testified that he had frequently called the plaintiff’s attention to the fact that he was delaying the work, and, in consequence of that, claimed that he had lost rent. He was then asked the question, “ How much ? ” This was objected to on behalf of the plaintiff as incompetent, irrelevant and immaterial, and it appears to us that an answer to that question would have been a mere conclusion of the witness, as no proper basis had been laid for it, and the defendant had not attempted to precede it or follow it up by laying the proper basis therefor. It is not in the nature of expert testimony, which would have been incompetent, in our judgment. It had not been shown that there were any applicants for rooms in the house, or that by reason of their not being completed, applicants had been refused or could not take possession, or that rent had been lost in consequence. This precise question was considered by the General Term of the City Court in the case of Conover v. Lennon, 46 N. Y. St. Repr. 18 , which was affirmed by this court. See, also, Scribner v. Jacobs, 31 N. Y. St. Repr. 195 , 196.

" No other exceptions were argued upon the appeal, and we think the judgment should be affirmed, with costs.

Bischoff and Pbyob, JJ., concur.

Judgment affirmed.

Cases cited

Aldridge v. Aldridge 120 N. Y. 614 N.Y. 1890-06-27 p. 188
Halpin v. Phenix Insurance 118 N. Y. 165 N.Y. 1890-01-14 p. 188