Feldman v. McGraw — 43 N.Y.S. 885

Majority

p. 885

FELDMAN v. McGRAW et al.

(Supreme Court, Appellate Division, Second Department.

February 19, 1897.)

Headnote

Appeal—Review—Former Decision.

One department of the appellate division will not consider the admissibility of certain evidence under a particular plea, where the point has been deliberately decided on a former appeal by another department

Appeal from trial term, New York county.

Transferred from the First department.

Action by Bernard Feldman against Frederick J. McGraw and Michael Brennan. From a judgment entered on a verdict in favor of defendants, and from an order denying a new trial, plaintiff appeals. Affirmed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT* HATCH, and BRADLEY, JJ.

S. R. Ten Eyck, for appellant.

N. A. Lawlor, for respondents.

The nature of this action is stated, and the-facts are sufficiently set forth, in the opinion delivered upon the first appeal. Feldman v. McGraw, 1 App. Div. 574 , 37 N. Y. Supp. 434 . It was there held that the plea of usury in the answer entitled the defendants to show that the note in suit was a substitute for other notes which were also usurious. A considerable por

p. 886

tion of the brief for the appellant on the present appeal is devoted to an effort to convince us that this view is erroneous. As was intimated on the oral argument, however, we shall decline to re-examine a point of this kind, involving no question of legal principle, but only the admissibility of certain evidence under a particular plea, where the point has been deliberately passed upon by the appellate division in another department.

One suggestion, however, in this portion of the appellant’s brief may be noticed. That is that the proof actually put in by the defendants on the second trial could not reasonably have been anticipated by the plaintiff. “Can it with any reason,” says counsel, “be claimed that the plaintiff was apprised by the answers in this ease that he would be called upon to meet such a state of facts?” The obvious response is that, whatever may have been the case on the first trial, the plaintiff must have known exactly what to look for in this respect on the second trial, after the court, on appeal, had declared that evidence as to the usurious character of the antecedent notes could and must be received. In the light' of that-decision, it is impossible to see how the plaintiff could have been surprised at the introduction of such proof. He must have been aware that it would be offered, and he had ample opportunity to prepare himself accordingly to meet it.

We have read the testimony, and find nothing to warrant us in interfering with the verdict as being against the evidence. Criticism is made upon only a single proposition in the judge’s charge, and to that no exception was taken. We do not think it was either erroneous or harmful to the plaintiff.

The judgment and order must be affirmed, with costs.

Cases cited

Feldman v. McGraw 1 App. Div. 574 N.Y. App. Div. 1896-02-21 p. 885