Engel v. Dicter — 65 N.Y.S. 296

Majority

p. 296

ENGEL et al. v. DICTER.

(Supreme Court, Appellate Term.

June 1, 1900.)

Headnote

1, Evidence—Dependant’s Admissions—Competency.

Under Code Civ. Proc. § 838, providing that the testimony of a party taken at the instance of the adverse party may be rebutted by other evidence, defendant’s earlier statements are competent, though she had been called by plaintiff.

2. Appeal—Denial op New Trial.

An appeal will not lie from an order denying a motion for a new trial.

Appeal from municipal court, borough of Manhattan.

Action by Julius Engel and others against Bianca Dieter. From a judgment in favor of plaintiffs, defendant appeals.

Affirmed.

Argued before TRUAX, P. J., and SCOTT and DUGKRÓ, JJ.

William Barnes, for appellant.

Charles L. Hoffman, for respondents.

The evidence of statements of the defendant was competent. The witness being the adverse party, it was competent, even though she had been called by the plaintiff, to show her earlier statements as admissions. Code. Civ. Proc. § 838. In proving admissions, it is not necessary to call the attention of a witness to the time and place of the statement. As there was no reference to defendant’s condition at the trial, and no application for an adjournment, the learned justice was right in denying the motion for a new trial, and particularly so in view of the fact that the judgment should not have been otherwise than it is, even if the defendant had contradicted the evidence which it is asserted she would have contradicted.

This court has, however, no jurisdiction to review the order appealed from, as an appeal does not lie from such an order. There was no error requiring reversal.

The judgment appealed from is affirmed, with costs, and the appeal from the order is dismissed.