Harlam v. Green

The jury in this case found a verdict in favor of the plaintiff. An appeal from the judgment entered thereon, as well as from an order denying a motion for a new trial, was taken to the general term of the city court, where both the judgment and order were affirmed. The matter is now before us upon an appeal therefrom. The appellant seeks to review both the order denying the motion for a new trial and the judgment. So far as the order is concerned, it is not appealable to this court, and we therefore have no right to review the. facts. In reviewing the judgment we are confined solely to a consideration of such exceptions as may have been taken by the appellant to rulings made by the justice at the trial. The contention is advanced that there was not sufficient evidence in the case to go to the jury with respect to the possession and detention of the property by the defendant. The counsel for the defendant, however, upon the close of the case, neither moved for a dismissal of the complaint nor for the direction of a verdict in his favor. Under well-settled principles, this was tantamount to an admission that there was sufficient evidence upon that point to go to the jury. But, apart from this, we are satisfied that there was evidence in the case upon this point which, if believed by the jury, was sufficient to sustain their verdict. Counsel for the defendant asked the court to charge that there was no proof that the defendant was in possession of the property concerning which suit was brought at any time except when he was doing work upon the same for one Hamilton. This the court declined to charge, and the defendant excepted to such ruling. The ruling of the court was proper, and the exception was not well taken. The request was tantamount to asking the court to direct a verdict in favor of the defendant, and, as has been stated, there was evidence in the case which called for the submission to the jury of the question referred to in the request. This is the only exception which was taken with respect to the charge.

The counsel for the defendant has presented for our consideration a number of rulings made by the trial justice with respect to the admissibility of evidence, most of which were not excepted to. We cannot, therefore, consider them.

The objection which was made to the evidence of cost of the property as bearing upon the question of value was not well taken. It seems to be well settled that cost is some evidence of value.

The court did not err in excluding the letter of Cammann to Hamilton, dated October 27, 1897, being defendant’s Exhibit 1, for identification. The property had been sold by Cammann to the plaintiff, as the bill of sale shows, on May 1, 1897,—about six months before the letter in question was written. Declarations made by the assignor out of court, after the transfer of the property, are not, ordinarily, evidence against the assignee. .. If, as it is claimed, the letter was sought to be introduced in evidence for the purpose of impeaching the credibility of Mr. Cammann, who was examined as a witness upon the trial, the answer seems to be that, as Mr. Cammann was called and examined by the defendant upon the issues in the case, he could: not impeach his credibility. We are aware of

Judgment affirmed, with costs.