Schermerhorn v. Gregg

Headnote

This was an action upon a promissory note, given by defendant for a share in an association owning a patent right. The defence was that defendant was induced to take the share and give the note by means of the fraudulent representations that James Gregg, his brother, had taken a share, and had sent word to him to do so. James Gregg was called as a witness for defendant, and testified to the falsity of these representations. Upon his cross-examination, he admitted his signature to a note like that of defendant’s in amount, and that he received a receipt of membership. Upon re-direct examination, he testified that he agreed to take half a share if his brother would take the other half, and that he signed a printed note in blank, authorizing it to be filled up for $300, if his brother would take half and sign it with him. Witness Gregg was asked if he did not make declarations to one James McMillan, in the fall of 1871, in substance admitting that he had paid $300 for a share in the association.

This the witness denied. McMillan was called by plaintiff, and asked if Gregg did not make the declarations specified, in March, 1872. This was objected to as incompetent, irrelevant and immaterial. Held, that defendant could not, on appeal, raise the objection that Gregg was asked as to a conversation at a different time from that, to which McMillan was permitted to testify, as the point was not taken on the trial {Height v. The People, 50 JSf. Y-, 392); also held, that the evidence justified the submission of the question of fraud to the jury, and that a motion for nonsuit was properly denied.