Sherry v. Proal

Headnote

Sherry v. Proal, 166 App. Div. 918 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 5, 1915, affirming a judgment in favor of defendant entered upon a verdict in an action to recover rent alleged to be due under a lease. The answer was a general denial. The question on each of the trials was whether or not the jury would accept the defendant’s version of what occurred in the conversation with Elauraud in July, 1906, or whether they would accept Flauraud’s version thereof. Elauraud testified as a witness upon the first and second trials but died before the third trial. On the fourth trial his testimony was read in evidence under the provisions of section 830 of the Code of Oivil Procedure. The grounds relied on for reversal are, first, that Elauraud being dead, the court erred in permitting the defendant to testify to the conversation had

with Flauraud; that the court should have excluded defendant’s testimony and have required defendant, if he desired to put in evidence the conversation with Flauraud, to offer the minutes of his testimony taken on the former trial; that defendant’s oral testimony was incompetent under the provisions of section 829 of the Code of Civil Procedure; second,. that the court erred in refusing to permit plaintiff’s counsel in summing up to read to the jury from a copy of the stenographer’s minutes of a former trial certain questions he had asked defendant on the former trial and the answers given by defendant thereto, and third, that the verdict of the jury was against the weight of the evidence.