p. 1081HOGAN v. MUTUAL AID & ACC. ASS’N.(Supreme Court, General Term, Fifth Department.Headnote
1. Trial—Striking Out Testimony.Where evidence admitted without objection afterwards appears to be Incompetent, it is in the discretion of the court to strike it out.
3. Same—Instruction to Disregard.
Testimony by the brothers of a decedent that he was born in a certain year is only partially impaired by their statement on cross-examination that they did not recollect the circumstances of the birth, or the year, independently of the general talk in the family, where one of the brothers recollected decedent as an infant in the cradle, and the other brother, as a small boy, and therefore the court properly refused to instruct the jury to disregard it.
Appeal from circuit court, Niagara county.
Action by Mary Hogan, as executrix, etc., against the Mutual Aid & Accident Association. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court, defendant appeals.
Argued before DWIGHT, P. J., and HAIGHT and LEWIS, JJ.Henry M. Hill, for appellant.
P. F. King, for respondent.
This action was brought to recover the sum of $2,000 upon a policy of insurance issued by the defendant upon the life of Hugh O’Haire, the plaintiff’s testator. The defense was that the deceased, in his application for insurance, had falsely represented his age to be but 47, when in fact he was much older, and that in his application he had agreed that his representations should
p. 1082form the basis of his contract with the defendant. Upon the trial the plaintiff called as witnesses Patrick and John O’Haire, elder brothers of the deceased, who testified that he was born in County Louth, Ireland, in the year 1838. Patrick was born in 1830, and John in 1833; so that one was eight years and the other five years older than the deceased. On the cross-examination they conceded that they could not recollect the circumstances of the birth of Hugh, or the year, independent of the statements of their father, and the general talk in the family. But Patrick recollected Mm as an infant in the cradle; and John, as a boy running around, when he (the witness) was seven or eight years of age. No objection was made to the reception of this evidence. After it had been taken, the defendant moved to strike it out. The court refused, and an exception was taken. This presents the only question whicji we are requested to consider upon this review.
We think that the ruling of the trial court was correct. When evidence is admitted upon a trial by jury, without objection, or properly under objection, which for reasons subsequently appearing, should not be considered by the jury, its retention is discretionary' with the court, and it is not error to refuse to strike it out. The remedy of the party is to ask the court to instruct the jury to disregard it. Marks v. King, 64 N. Y. 628 ; Platner v. Platner, 78 N. Y. 90 ; Holmes v. Moffat, 120 N. Y. 159 -163, 24 N. E. 275 ; Pontius v. People, 82 N. Y. 339 .
But in this casé the court could not properly, in its discretion, strike out the evidence, or instruct the jury to disregard it. The testimony of the witnesses was but partially impaired by their cross-examination. They were small children, and could not, independently of the statements of their father, and what had always been talked and understood in the family, recollect the year of thé birth of Hugh; but they remembered him from infancy, knew about their own ages, grew up with him, etc.,—pertinent facts bearing upon the age of Hugh, and which enabled the witnesses to know and testify nearly if not to the exact year of his birth. The judgment should be affirmed. All concur.