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Wilson v. Boasberg

21 N.Y.S. 915 Court N.Y. Super. Ct. Decision date 1893-02-03 English

Delivered by HATCH, J.

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p. 915
WILSON et al. v. BOASBERG.
(Superior Court of Buffalo, General Term.
February 3, 1893.)

Headnote

Review on Appeal—Objection to Evidence. Where a general objection, made to a question and answer after they are in, is overruled, and an exception is taken, but no motion is thereafter made to strike out the testimony, no quéstion is thus presented for the appellate court. Haugen v. Hachemeister, 21 N. E. Rep. 1046 , 114 N. Y. 566 , followed.
Appeal from trial term.
Action by Robert W. Wilson and another against Herman Boasberg. From a judgment for plaintiff, rendered on the verdict, defendant appeals. Affirmed.
Argued before WHITE and HATCH, JJ.
Daniel McIntosh, (Adelbert Moot, of counsel,) for appellant.
Frank M. Loomis, for appellee.

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. As 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 jeweler about 28 years before. This ring he pawned to plaintiffs. It was stolen from plaintiffs’ safe by a young man, who sold it to defendant. The particular question at this juncture was its value. Witness was asked: “Question. What was the amount you paid for the ring? Answer. Three hundred and fifty dollars.” Defendant’s attorney, after question and answer, made a gen- . eral 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 , 21 N.

p. 916
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, plaintiffs 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 N. Y. 417 ; Hoffman v. Conner, 76 N. Y. 121 . No legal error being found, the judgment appealed from is affirmed, with costs.

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